Trammell v. Williams

Decision Date28 January 1958
Docket NumberNos. 37007,No. 1,37030,s. 37007,1
Citation101 S.E.2d 887,97 Ga.App. 31
PartiesJohn TRAMMELL v. W.E. WILLIAMS. W.E. WILLIAMS v. John TRAMMELL
CourtGeorgia Court of Appeals

Syllabus by the Court

1. Where a ground of motion for new trial sets forth facts showing that the error complained of was harmless, the ground shows no error.

2. In a personal injury case, an accident is an event which happens unmixed with the lack of ordinary care and diligence of either party.

3. The terms 'ordinary care' and 'ordinary diligence' are considered as synonymous.

4, 5. Special ground 4 and the general grounds of the motion for a new trial are without merit.

John Trammell filed a suit against Wallace English Williams for damages arising out of an automobile collision.

The petiton alleged in part that: on June 11, 1955 at approximately 2 p. m. he was driving his automobile in a northerly direction on Spring Street, a public street in the City of Atlanta; at the time the defendant was driving his automobile in a southerly direction on Spring Street; upon approaching the intersection of Spring and Trinity Streets petitioner stopped his car in the right or east lane of traffic proceeding north on Spring Street at the traffic light at the intersection, which was red or stop for traffic proceeding in that direction; upon approaching the intersection, the defendant stopped his automobile in the east lane of traffic proceeding in a southern direction on Spring Street at the traffic light which was red or 'stop' for traffic proceeding in that direction; upon the light turning green or 'go' for the traffic proceeding north and south on Spring Street, petitioner put his car in low gear and proceeded north on Spring Street; the front of petitioner's automobile reached a point approximately ten feet in from the southeast corner of Spring and Trinity Streets where petitioner's car collided with the defendant's automobile; the defendant upon the light changing to green, turned his car left and proceeded southeats into Trinity Street; in so doing, he turned his car directly in front of petitioner so that it was impossible for petitioner to avoid colliding with the defendant's car; petitioner, upon abserving the defendant's automobile suddenly and without warning or signal being turned immediately in front of his car, and realizing a collision was imminent, turned his car to the sharp left or west in an attempt to avoid colliding into the portion of defendant's automobile being occupied by a woman passenger; the right front side of petitioner's car struck the right rear side of the defendant's automobile; petitioner's speed at the time of impact was approximately five miles per hour; the defendant's speed at the time was approximately fifteen miles per hour the petitioner charges negligence per se and common law negligence against the defendant as follows: in suddenly driving his automobile in front of petitioner's automobile; in failing to signal his intention to turn left at the intersection, the same being common law negligence and negligence per se in violation of Georgia Code, § 68-1647 and City of Atlanta Ordinance, § 30.41 and 30.44; in making a left turn and failing to yield the right of way to petitioner who had already entered the intersection, same being common law negligence and negligence per se, in violation of Georgia Code, § 68-1651 and Ordinance of the City of Atlanta, Sections 30.44 and 30.78(a)(1); in driving defendant's vehicle in such a manner as hereinbefore alleged so as not to have the same under control to avoid colliding with petitioner's automobile; the foregoing acts of negligence were the proximate cause of the injuries to petitioner as hereinafter set forth.

On the trial the jury returned a verdict for the defendant. The plaintiff filed a motion for new trial which was denied, and it is to this ruling exception is taken.

William L. Moore, Atlanta, for plaintiff in error.

Powell, Goldstein, Frazer & Murphy, Frank Love, Jr., Atlanta, for defendant in error.

QUILLIAN, Judge.

1. Special ground 1 of the amended motion for a new trial assigns as error the following charge: 'I charge you that when a party has evidence in his power and within his reach but fails to produce that evidence this raises a presumption that the evidence, if produced, would be prejudicial to the party who could, but did not, produce it.'

The exceptions taken to the charge were: '(a) Said principle of law had no application to the facts of this case. (b) There was no evidence before the court that there were witnesses that were not available to both parties. (c) There was no showing before the court that evidence was within the power of any of the parties that was not produced not the power of the other to contradict as to which the presumption could apply. (d) There was no showing that any party, and especially plaintiff, was guilty of suppression of evidence.'

The exceptions (a) and (b) were in substance the same. They both attack the charge as not being adapted to the issues of the case. The allegation contained in the exceptions (c) and (d) of the ground, that neither party failed to produce evidence available to him, affirmatively revealed that if there was error in the charge because it was not adapted to the pleadings and proof of the case, it was entirely harmless. If there was not default of either party in producing evidence the charge could not have been more prejudicial to the plaintiff's cause than to the defendant's defense.

However, the charge was adapted to the issues of the case as presented by the pleadings and evidence. The petition alleged that the plaintiff was entitled to recover damages of the defendant because of injuries sustained by him in a collision of his automobile with that of the defendant. The plaintiff's condition immediately after the collision and over a period of several months, was material in determining the amount of his recovery. He failed to produce testimony of his wife, with whom he was living both at the time of the collision and the time of the trial, as to his appearance, that is whether he appeared to be in pain or experiencing difficulty in the use of his hands and arms as alleged in the petition and asserted by his own testimony. Within the...

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9 cases
  • Jones v. Otis Elevator Co.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • December 8, 1988
    ...bias or hostility against the opposing party. McClanahan v. United States, 230 F.2d 919, 926 (5th Cir.1956); Trammell v. Williams, 97 Ga.App. 31, 101 S.E.2d 887, 890 (1958); see generally 3 Wigmore, Evidence Secs. 285-288 (4th Ed.1979). 5 Because of an employee's economic interests, the emp......
  • Gellis v. B. L. I. Const. Co., Inc.
    • United States
    • Georgia Court of Appeals
    • December 20, 1978
    ...Ann. § 38-119) constituted reversible error. Central of Ga. R. Co. v. Luther, 128 Ga.App. 178(1), 196 S.E.2d 149. Cf. Trammell v. Williams, 97 Ga.App. 31(1), 101 S.E.2d 887. IIT's Enumeration 12 is without 9. Appellant submitted a timely written request to charge in accordance with Code Ann......
  • Smith v. Poteet
    • United States
    • Georgia Court of Appeals
    • November 17, 1972
    ...it is not error to charge the jury on that subject. Caldwell v. Knight, 94 Ga.App. 827, 96 S.E.2d 331. See also Trammell v. Williams, 97 Ga.App. 31, 101 S.E.2d 887. 8. Enumeration number 10 contends the court erred in failing to inform plaintiff's counsel as to the court's proposed action o......
  • Gurin v. Harris
    • United States
    • Georgia Court of Appeals
    • September 5, 1973
    ...consideration of an impossible theory of accident. Counsel for the defendant has cited several authorities, such as Trammell v. Williams, 97 Ga.App. 31(2), 101 S.E.2d 887; Caldwell v. Knight, 94 Ga.App. 827, 828, 96 S.E.2d 331, and Smith v. Poteet, 127 Ga.App. 735, 742, 195 S.E.2d 213, citi......
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