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BUTLER et al. v. ANDERSON et al.
64498.
BANKE, Judge.
Action for damages. Fulton Superior Court. Before Judge Tanksley, Senior Judge.
The appellants, Mr. and Mrs. Butler sued to recover for personal injuries and losses of consortium allegedly sustained as a result of an automobile accident in which Mrs. Butler was involved. The jury returned a verdict in favor of Mrs. Butler in the amount of $5,000 and for Mr. Butler in the amount of $2,000; however, the latter verdict was reduced to zero by deduction of personal injury protection (no-fault) benefits. On appeal, the appellants contend that the damages were insufficient as a matter of law and that the trial judge gave several erroneous instructions to the jury. Held:
1. The collision was slight, and there was medical evidence indicating that Mrs. Butler suffered no objective physical injury from it. There was also evidence that her complaints of back and leg pain may have resulted from an overweight condition rather than from physical trauma. "'A verdict for less than the amount of the plaintiff's proved medical expenses is not so inadequate as to require a new trial where there was testimony showing that the plaintiff's complaints were at least partially related to her physical condition prior to the collision.' [Cits.]" Trowell v. Weston, 154 Ga. App. 572, 573 (269 SE2d 74) (1980). The verdict was not contrary to the evidence.
2. Any error committed by the trial court in denying the appellants' motion for directed verdict on the issue of liability was harmless in view of the fact that the jury returned verdicts in their favor. The award of damages similarly renders harmless any error committed by the court in charging the jury on the doctrines of sudden emergency and contributory negligence. See Jernigan v. Carmichael, 145 Ga. App. 560 (2) (244 SE2d 92) (1978). See generally Maloy v. Dixon, 127 Ga. App. 151 (2b) (193 SE2d 19) (1972).
3. The trial court did not err in charging the jury that an injured plaintiff is under a duty to lessen damages by following the reasonable instructions and advice of her physicians insofar as is reasonably possible. As previously indicated, there was medical evidence to the effect that Mrs. Butler's back and leg pain was caused by her obesity, and Mrs. Butler admitted that almost every doctor who had treated her for the pain had told her that not much could be done for her unless she lost some weight. Under Code 105-2014, an injured plaintiff is under a general duty to lessen damages as far as is practicable by the use of ordinary care and diligence. "It is not error to give an instruction where there is any evidence, however slight, on which to predicate it. Camp v. Phillips, 42 Ga. 289." Morse v. MARTA, 161 Ga. App. 405 (288 SE2d 275) (1982).
John F. Davis, Jr., Richard L. Ormand, for appellees.
Ralph D. Vaughn, James E. Hardy, for appellants.
DECIDED SEPTEMBER 15, 1982.
Thursday May 21 20:56 EDT


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