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Action for damages. Polk State Court. Before Judge Flournoy.
The present case is before this court on an appeal by the plaintiff from a judgment in favor of the defendant in an action brought by the plaintiff seeking damages for loss of consortium resulting from the alleged negligence of the defendant which caused injuries to plaintiff's husband in an automobile collision between automobiles operated by plaintiff and the defendant. Held:
1. Where a lay witness was giving an opinion as to which automobile struck the other automobile, and as to where the front of one automobile was located in the roadway at the time of the collision based upon indicia in the roadway and the damage to the automobiles, and objection was made thereto on the ground that "it was a matter for the jury to determine," the trial court did not err in sustaining such objection. See Whatley v. Henry, 65 Ga. App. 668, 681 (16 SE2d 214), citing Mars v. State, 163 Ga. 43 (7) (135 SE 410), involving the identical situation.
2. Complaint is made of the charge of the court that the evidence showed the maximum lawful speed at the time and place of the collision under investigation was 60 miles per hour is an expression of an opinion by the trial judge prohibited by Code 81-1104, but does not refer to any portion of the record or transcript from which it can be determined there is an issue as to this in the case. If there were no issue as to the maximum lawful speed applicable, the charge was not reversible error. See Ga. R. &c. Co. v. Cole, 1 Ga. App. 33 (1) (57 SE 1026); Daniel v. Charping, 151 Ga. 34 (3) (105 SE 465). The burden is upon the appellant to show harmful error and where the appellant contends that certain evidence made an issue as to the lawful maximum speed at the time and place under investigation, but makes no reference to the record or transcript where such evidence may be found as required by the rules of this court, the action of the trial judge will be affirmed.
3. The evidence was sufficient to authorize the verdict found.
PANNELL, Judge, concurring specially.
I do not agree with the conclusions reached in any of the cases cited in Headnote 1 of the opinion, but I am bound by the decision in them. My opinion is that a lay or expert witness may give his opinion as to the matters here involved where a proper foundation is laid there for (Augusta & S. R. Co. v. Dorsey, 68 Ga. 228 (1); Sellers v. Johnson, 207 Ga. 166 (1) (60 SE2d 352); Central R. v. Coggin, 73 Ga. 689 (6); Atlanta Street R. Co. v. Walker, 93 Ga. 462, 465 (21 SE 48); Cone v. Davis, 66 Ga. App. 229 (6) (17 SE2d 849)), and his opinion testimony is not objectionable on the ground stated. It is my further individual view that while the opinion of any witness, lay or expert, as to the ultimate fact for determination by the jury (not arising under Code 38-1708) may be inadmissible (see Travelers Ins. Co. v. Thornton, 119 Ga. 455 (1, 2) (46 SE 678)), that is not the case here or in Whatley v. Henry, 65 Ga. App. 668, supra, or Mars v. State, 163 Ga. 43, supra. The ultimate facts to be determined here are the negligence or lack of negligence of the parties and whether such negligence was or was not the proximate cause of the injuries.
Henry A. Stewart, Sr., for appellee.
Marson G. Dunaway, Jr., for appellant.
Friday May 22 16:11 EDT

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