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Damages. Before Judge Carpenter. Putnam Superior Court. September 24, 1954.
There being no merit in the general or special grounds of the amended motion for a new trial the court did not err in denying it.
After the decision in this case involving demurrers (Tuggle v. Waller, 89 Ga. App. 827, 81 S. E. 2d 541), the plaintiff amended his petition against William Earl Tuggle, the remaining defendant, by making the following allegations: "On May 19, 1952, William Earl Tuggle, drove his 1952 Ford automobile to said store and filling station on business, got out of his automobile on his left-hand side, left the left-hand front door on his automobile open and went into the store; . . . (he) parked his Ford automobile facing in the direction of Milledgeville, Georgia, at an angle of about 30 degrees with the front of the store of Willie I. Waller, and parked at the gas pump and between the said store and filling station, and the road, and so that said Ford car was facing in an easterly direction, and not exactly parallel with the front of the store, but at the angle as aforesaid, and being on the premises of Willie I. Waller, which was the approach that had been graded as aforesaid from the roadway as a way of egress and ingress onto Willie I. Waller's premises and to his gas pump and store; Willie I. Waller was standing near said automobile and to the rear, not knowing that William Earl Tuggle had left the same unbraked, and otherwise unsecured against movement, and when said car suddenly and without warning rolled backward down the steep and dangerous grade which had been left by Wright Contracting Company, traveling directly towards plaintiff; Willie I. Waller was standing in front of his store when said William Earl Tuggle drove his Ford automobile to the place aforesaid, and said William Earl Tuggle got out of his said automobile and walked into the store, leaving plaintiff standing slightly to the left side of the rear of said Ford automobile at a distance of approximately 15 feet therefrom, and so that he was approximately 3 feet to the left of the tracks the car had made as it drove to said store and filling station. When said car rolled backwards with the front door open, it did not move backward in the same tracks it had made when the car first came onto said premises, but the back wheels were further to their left to the extent of approximately 3 to 4 feet, and when plaintiff observed the car backing towards him with the front door open, it had already traversed approximately 10 feet, and plaintiff immediately upon seeing that he was about to be hit by the backing automobile, tried to get out of the way of the on-coming vehicle, but could not move fast enough to avoid being struck by the automobile as aforesaid. The Ford automobile was about 5 feet from Willie I. Waller when he saw same moving towards him, and it was about 3 to 4 feet from him when he tried to jump out of the way. Plaintiff avers that same was traveling at least twice as fast as the plaintiff moved as he jumped away in an effort to escape the said automobile, (and) Willie I. Waller tried to jump out of the way of said car as it backed swiftly to-
wards him down said grade, but not having been warned, and because of the speed of the car, he was unable to avoid the car's striking him, and throwing him violently to the ground, and causing serious and permanent injuries which will be hereinafter more fully described."
The jury found for the plaintiff, and the defendant excepts to the denial of his amended motion for a new trial.
The plaintiff testified that, as the defendant's automobile rolled down toward him, in an effort to escape being injured he tried to reach into the automobile through the door, which was left open, in an effort to reach the steering wheel and steer it away from him; that he did his best to escape it. The defendant introduced in evidence a written statement made by the plaintiff while he was in the hospital, to the effect that, as the automobile rolled toward him, he made an effort to reach the steering wheel in order to prevent the automobile from hitting a truck parked near the path of the moving automobile. The plaintiff explained the extra-judicial statement by stating that he was in the hospital undergoing pain, and that he did not know what the instrument contained, and he further stated that an insurance adjuster wrote the statement and he signed it.
1. There was not a fatal variance between the allegations and the proof. It is true that there are no allegations in the petition with reference to trying to escape injury by grasping the steering wheel, etc., but there was no objection to the testimony on the ground that it did not sustain the allegations of the petition; so, conceding but not deciding that such objection would have been good, the allegations in the petition to the effect that the plaintiff could not escape from the path of the automobile and thus avoid injury did not relate to the negligence of the defendant, but related to the exercise of care by the plaintiff in the effort to avoid injury, and the petition could have been amended to meet the objection. There is no merit in this contention.
2. There is no merit in the contention that a verdict was demanded for the defendant because the plaintiff's testimony was vague, inconsistent, and contradictory, and clearly showed that the plaintiff was not entitled to recover. The plaintiff's testimony was not vague, inconsistent, or contradictory. His extrajudicial statement, which in some ways contradicted his testimony, cannot bring the rule of construction of a party's testimony into play, for the simple reason that such evidence is not a part of the plaintiff's testimony on the trial. The general grounds of the amended motion for a new trial are without merit.
3. In ground (b) of the amended motion for a new trial error is assigned on the charge: "Applied to the preservation of property, ordinary diligence means that care which every prudent man takes of his own property of a similar nature." We do not consider that this charge requires the grant of a new trial. If the jury had believed the extra-judicial statement of the plaintiff that he was endeavoring to prevent the defendant's automobile from striking a truck, rather than his testimony that he was endeavoring to avoid injury to himself, they would have had to decide how much care was required of the plaintiff in his effort to protect property. The charge given required ordinary care. We do not see how the charge could have hurt the defendant. Rushton v. Howle, 79 Ga. App. 360 (53 S. E. 2d 768). There was no assignment of error on the failure of the judge to charge the principle stated in the case just cited. The charge as a whole was more favorable to the defendant than the law requires.
4. Ground (c) is without merit.
5. There was evidence from which a jury could find the difference in the plaintiff's earning capacity between that before and that after the injuries sustained as a result of the alleged negligence of the defendant. The charge complained of in ground (d) was not erroneous for any reason assigned.
6. It was not error to fail to charge the law on comparative negligence, since there were no pleadings which raised this question, and there was no request to charge on the subject. No charge is required on an issue not made by the pleadings. Benton Rapid Express v. Sammons, 63 Ga. App. 23, 30 (10 S. E. 2d 290); Ga. Power Co. v. Weaver, 68 Ga. App. 652, 656 (3) (23 S. E. 2d 730); Callaway v. Fischer, 69 Ga. App. 251, 256 (5) (25 S. E. 2d 131); Hatcher v. Bray, 88 Ga. App. 344, 349 (8) (77 S. E. 2d 64). Grounds (e) and (f) are without merit.
7. The verdict of $7,000 was not excessive.
The court did not err in denying the amended motion for a new trial.
Peter J. Rice, Randall Evans, Jr., contra.
Whitman & Whitman, Erwin Sibley, for plaintiff in error.
Saturday May 23 03:16 EDT

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