Tittle v. McCombs, 48048
| Decision Date | 09 May 1973 |
| Docket Number | No. 2,No. 48048,48048,2 |
| Parties | Mae D. TITTLE v. John D. McCOMBS |
| Court | Georgia Court of Appeals |
Grady C. Pittard, Jr., Athens, for appellant.
Erwin, Epting, Gibson & Chilivis, Eugene A. Epting, Athens, for appellee.
Syllabus Opinion by the Court
The plaintiff in a wrongful death action appeals from the judgment and from the denial of her motion for a new trial. Plaintiff's seventeen year old son was killed in a collision with an automobile while riding a motorcycle. The collision occurred at an intersection of a four lane street. Plaintiff's son was in the curb lane proceeding through the intersection and the defendant, who was approaching from the opposite direction, was making a left-hand turn.
1. While the evidence was in conflict, the verdict was authorized.
2. Plaintiff contends the court erred by not allowing a witness to answer a question concerning traffic conditions at the point of the collision at other times. She contends this would tend to show that the deceased was proceeding at a lawful rate of speed. This logic is insupportable. The witness, who was immediately behind the deceased, had already testified about traffic flow and conditions during the relevant period; had testified that he and the deceased had been traveling at the same rate of speed; and had given his opinion on that rate of speed in miles per hour. The rejected questioning bears no relation to the point plaintiff contends it was meant to illustrate.
3. Plaintiff contends the court erred in allowing, on cross examiantion of plaintiff's husband, questioning on the traffic accident history of the deceased son. While if this question stood alone, it would be highly prejudicial, it came in obliquely during a series of questions eliciting the information that the son had been hospitalized twice within the preceding six weeks. The defendant contends the questioning was legitimate rebuttal to plaintiff's pleadings and proof of the son's good health and physical condition. The issue here is very close, as it involves the old device of bringing in prohibited evidence through the back door. However, plaintiff's objection was too broad, i.e., that both prior accidents and hospitalizations were 'immaterial and irrelevant.' As hospitalizations were relevant, the plaintiff should have made his objection only to the accident; should have stated as grounds the highly prejudicial effect; and have asked the court to admonish the jury to disregard the reference to an accident. The objection was therefore too faulty to predicate error upon. Horton v. Ammons, 125 Ga.App. 69(5), 186 S.E.2d 469.
4. Another enumeration of error concerns a question rejected by the court which asked for the opinion of an eyewitness whether the speed of the motorcycle was 'excessive for the time, place and conditions.' As this witness had already testified concerning the conditions, and had given his opinion of the speed of the motorcycle, any opinion on 'excessiveness' would be a conclusion intimately related to the...
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