Thurmond v. Billingsley

• Court: Georgia Court of Appeals
• Writing for the Court: CARLISLE; GARDNER, P. J., and TOWNSEND
• Citation: Thurmond v. Billingsley, 88 Ga.App. 21, 75 S.E.2d 827 (Ga. App. 1953)
• Decision Date: 11 April 1953
• Docket Number: No. 2,No. 34594,34594,2
• Parties: THURMOND v. BILLINGSLEY

Page 827

75 S.E.2d 827

88 Ga.App. 21

THURMOND v. BILLINGSLEY.

No. 34594.

Court of Appeals of Georgia, Division No. 2.

April 11, 1953.

Syllabus by the Court.

1. The court's reading of the contentions of the plaintiff from the petition is entirely proper.

2. In the absence of a timely written request so to do, it is not reversible error for the trial court to omit a charge on the theory of injury by accident, where the court has elsewhere in the general charge instructed the jury that, in order for the plaintiff to recover, it must be made to appear that the defendant's negligence was the proximate cause of the plaintiff's injuries.

3. The excerpt from the charge complained of in special ground 3 (numbered 6) was not subject to the criticism that it cast a greater burden on the defendant than was required by law.

4. The excerpt complained of in special ground 4 (numbered 7) is correct as an abstract principle of law and not subject to the criticism that it intimated the court's opinion that the jury should completely disregard the expert testimony.

5. The general grounds are treated as abandoned.

Mrs. J. H. Billingsley brought an action for damages against John Thurmond, in which she alleged substantially the following: On October 8, 1951, while riding in her son's car, which was going in a southerly direction on Lumpkin Street near the intersection of Cedar Street, in the City of Athens, and while driving behind a string of cars at a rate of speed of five miles per hour, occasioned by a car in front of him making a left turn across Lumpkin Street in an easterly direction, and while her son, who was driving the car in which the plaintiff was riding, had his left hand out as a signal that the car was coming to a stop, the defendant ran his car at a speed of twenty-five miles per hour into the car in which the plaintiff was riding. The impact was so great that it bent the front seat on which plaintiff was sitting, violently throwing the plaintiff's head backward; and, after the impact had spent itself, the sudden stop threw the plaintiff forward against the rear-view mirror and broke her glasses and the mirror. The shock knocked the plaintiff unconscious and caused her to have a prolonged heart attack at the time. This collision was the direct cause of a back injury sustained by the plaintiff at the time of the collision, and she has to wear a brace on account of damage to the second and sixth vertebrae. The impact of the plaintiff's head against the mirror and front part of the car caused great pain and suffering on the left side of her head, jaw, neck, and shoulder, and the pain and suffering continues. The plaintiff's left hand was injured and she continues to be unable to use it, etc. The defendant was negligent in driving his car against and into the car in which the plaintiff was riding, under the congested traffic condition that existed at the time, in violation of the motor-vehicle laws of Georgia and in violation of a quoted city ordinance of the City of Athens. The defendant did not use ordinary care in driving, with due regard to congested traffic conditions at the time; did not have his car under immediate control; and was driving his car too fast under the circumstances and without due regard for the lives and property of others at the time. The plaintiff sues for her personal injuries, her lost earning capacity, and her pain and suffering, all to her damage in the sum of $10,000. There were no demurrers to the petition. The jury returned a verdict for $4000. The defendant's motion, based on the usual general grounds and four special grounds, was overruled and he excepted.

Erwin, Nix, Birchmore & Epting, Athens, for plaintiff in error.

Carlisle Cobb and Hubert M. Rylee, Athens, for defendant in error.

CARLISLE, Judge.

1. It is quite proper for the trial court in its charge to the jury to state the contentions of the parties. Chattanooga Railroad v. Huggins, 89 Ga. 494, 504(6), 15 S.E. 848; Daniel v. Etheredge, 198 Ga. 191(2), 31 S.E.2d 181; John Deer Plow Co. v. Anderson, 29 Ga.App. 497(4), 116 S.E. 38. And, from a consideration of the portions of the court's charge which immediately precede and follow the excerpt complained of, together with paragraph 5 of the petition, it is crystal clear to this court as it must have been to the jury, that the trial court was reading the contentions of the plaintiff just exactly as the court had said it would do. Special ground 1 (numbered 4) is not meritorious.

2. In special ground 2 (numbered 5), error is assigned upon the following excerpt from the charge to the jury, on the grounds that it excluded the doctrine of 'injury by accident' from the consideration...