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 petition 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 southeast 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 observing 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 Code (Ann.) 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 Code (Ann.) 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.
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 nor 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 no 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.
App. 104 (2) (70 S. E. 352), where the testimony of available witnesses is material to his cause or defense, the witnesses must be produced or the inference will arise that their testimony would be unfavorable to the party who fails to produce them. Price v. Whitley Construction Co., 91 Ga. App. 257
, 268 (85 S. E. 2d 528); Beardsley v. Suburban Coach Co., 83 Ga. App. 381
(63 S. E. 2d 911); Weinkle & Sons v. Brunswick & Western R. Co., 107 Ga. 367
, 373 (33 S. E. 471); Savannah, Fla. & Western Ry. v. Gray, 77 Ga. 440
, 443 (3 S. E. 158); Stevenson v. State of Georgia, 83 Ga. 575
, 581 (10 S. E. 234).
While the charge was not an accurate statement of the rule as to when the presumption provided by Code 38-119 arises, in that it omitted reference to the statutory provisions that the presumption exists when the evidence the party fails to produce will repel a charge against him (is material to his cause or defense) or where the evidence the party introduces is inferior to that he fails to produce. But there was no exception to the charge on this ground. We simply call attention to the defect in the charge lest it be assumed it is approved by this court as being abstractly correct.
The plaintiff contends in his brief that the charge was also incorrect as an abstract principle of law. However, this contention not being urged in his amended motion for a new trial, it cannot be considered here. Paradies & Rich v. Warren Co., 53 Ga. App. 457
(186 S. E. 438); Hanover Fire Ins. Co. v. Scroggs, 90 Ga. App. 539
(83 S. E. 2d 295); Lunsford v. Ferrell, 85 Ga. App. 37
(68 S. E. 2d 153). Special ground 1 is without merit.
2. Special ground 2 insists that the trial judge erred in charging the jury as follows: "I charge you that if the plaintiff's damages or his injuries resulted from, an accident, and neither party was at fault, there could be no recovery in this case. And in that same connection I charge you that if the injury was the result of an accident, unmixed with the failure of either the plaintiff to use due ordinary care, or the defendant to exercise ordinary care, there could be no recovery because in the absence of the failure to use, and exercise, such care the injury is an accident and there could be no recovery against anyone."
The plaintiff contends that the charge was misleading because it instructed the jury that a recovery cannot be had for an injury which is the result of an accident. This argument is without merit because, in a personal injury case such as the present one, an accident is an event which happens unmixed with the lack of ordinary care and diligence of either party, for which there can be no recovery. Caldwell v. Knight, 94 Ga. App. 827
(96 S. E. 2d 331); Johnson v. National Life &c. Ins. Co., 92 Ga. App. 818
(90 S. E. 2d 36).
3. In special ground 3 error is assigned to the following charge: "I further charge you that the driver having the right of way is not entitled to drive blindly or recklessly across an intersection without regard to the conditions and consequences. It is his duty to exercise ordinary care in being alert to observe vehicles approaching the crossing and to exercise ordinary care to control the speed and movement of his car to avoid a collision after he sees or by ordinary diligence could have seen that one is threatened or imminent." It is insisted that the charge was misleading because ordinary diligence was not defined elsewhere in the charge. While the trial judge did not define "ordinary diligence," he did instruct the jury as to the meaning of "ordinary care". The terms "ordinary care" and "ordinary diligence" being commonly treated as synonymous, under authority of Atlanta, K. & N. Ry. Co. v. Tilson, 131 Ga. 395 (2) (62 S. E. 281), the plaintiff's contention is without merit.
4. Special ground 4 of the amended motion for a new trial is without merit.
5. The general grounds of the motion for a new trial insist that the evidence demanded a verdict for the plaintiff. On the trial of the case the defendant testified in part that: he was proceeding south on Spring Street; he stopped for a traffic light at the intersection of Spring and Trinity Streets; he turned on his left-turn signal light; when the traffic light turned green he proceeded to make a left turn; when he reached a point where the front portion of his automobile had cleared the intersection there was a collision; the plaintiff's automobile struck his vehicle toward the rear; at the time he proceeded to make the left turn he did not see an automobile in the lane in which the plaintiff's automobile was traveling.
The plaintiff testified in part: that the defendant suddenly drove his automobile directly in front of him making it impossible for him to avoid the collision.
The evidence being in conflict as to the material issues of the case, the verdict is not without evidence to support it. The general grounds of the motion for new trial are without merit.
Judgment affirmed on the main bill of exceptions. Cross bill of exceptions is dismissed. Felton, C. J., and Nichols, J., concur.