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Lawskills.com Georgia Caselaw
THURMOND v. BILLINGSLEY.
34594.
Damages. Before Judge Oldham. Athens City Court. January 31, 1953.
CARLISLE, J.
1. The court's reading of the contentions of the plaintiff from the petition is entirely proper.
2. In the absence of a timely written request so to do, it is not reversible error for the trial court to omit a charge on the theory of injury by accident, where the court has elsewhere in the general charge instructed the jury that, in order for the plaintiff to recover, it must be made to appear that the defendant's negligence was the proximate cause of the plaintiff's injuries.
3. The excerpt from the charge complained of in special ground 3 (numbered 6) was not subject to the criticism that it cast a greater burden on the defendant than was required by law.
4. The excerpt complained of in special ground 4 (numbered 7) is correct as an abstract principle of law and not subject to the criticism that it intimated the court's opinion that the jury should completely disregard the expert testimony.
5. The general grounds are treated as abandoned.
Mrs. J. H. Billingsley brought an action for damages against John Thurmond, in which she alleged substantially the following: On October 8, 1951, while riding in her son's car, which was going in a southerly direction on Lumpkin Street near the intersection of Cedar Street, in the City of Athens, and while driving behind a string of cars at a rate of speed of five miles per hour, occasioned by a car in front of her son making a left turn across Lumpkin Street in an easterly direction, and while her son, who was driving the car in which the plaintiff was riding, had his left hand out as a signal that the car was coming to a stop, the defendant ran his car at a speed of twenty-five miles per hour into the car in which the plaintiff was riding. The impact was so great that it bent the front seat on which plaintiff was sitting, violently throwing the plaintiff's head backward; and, after the impact had spent itself, the sudden stop threw the plaintiff forward against the rear-view mirror and broke her glasses and the mirror. The shock knocked the plaintiff unconscious and caused her to have a prolonged heart attack at the time. This collision was the direct cause of a back injury sustained by the plaintiff at the time of the collision, and she must wear a brace on account of damage to the second and sixth vertebrae. The impact of the plaintiff's head against the mirror and the front part of the car caused great pain and suffering on the left side of her head, jaw, neck, and shoulder, and the pain and suffering continues. The plaintiff's left hand was injured and she continues to be unable to use it, etc. The defendant was negligent in driving his car against and into the car in which the plaintiff was riding, under the congested traffic condition that existed at the time, in violation of the motor-vehicle laws of Georgia and in violation of a quoted city ordinance of the City of Athens. The defendant did not use ordinary care in driving, with due regard to congested traffic conditions at the time; did not have his car under immediate control; and was driving his car too fast under the circumstances and without due regard for the lives and property of others at the time. The plaintiff sues for her personal injuries, her lost earning capacity, and her pain and suffering, all to her damage in the sum of $10,000. There were no demurrers to the petition. The jury returned a verdict for $4,000. The defendant's motion, based on the usual general grounds and four special grounds, was overruled and he excepted.
1. It is quite proper for the trial court in its charge to the jury to state the contentions of the parties. Chattanooga Railroad v. Huggins, 89 Ga. 494, 504 (6) (15 S. E. 848); Daniel v. Etheredge, 198 Ga. 191 (2) (31 S. E. 2d, 181); John Deere Plow Co. v. Anderson, 29 Ga. App. 497 (4) (116 S. E. 38). And, from a consideration of the portions of the court's charge which immediately precede and follow the excerpt complained of, together with paragraph 5 of the petition, it is crystal clear to this court as it must have been to the jury, that the trial court was reading the contentions of the plaintiff just exactly as the court had said it would do. Special ground 1 (numbered 4) is not meritorious.
2. In special ground 2 (numbered 5), error is assigned upon the following excerpt from the charge to the jury, on the grounds that it excluded the doctrine of "injury by accident" from the consideration of the jury, and is incorrect as a matter of law: "That is to say the negligence of the driver of the car in which she was riding could not be charged against her and could in no way operate to prevent a recovery by the plaintiff unless it is made to appear that the negligence of the driver of the car in which she was riding was the sole proximate cause of any in jury that she may have received and that no negligence upon the part of the defendant concurred in producing such injury, if you find that such an injury occurred." Neither objection is valid. (a) In the absence of a request so to do, it is not reversible error for the trial court to omit to charge on the theory of accident, where it appears that elsewhere in the charge the court instructed the jury that, in order for the plaintiff to recover, it must be made to appear that the defendant's negligence was the proximate cause of the plaintiff's injury. Alabama &c. R. Co. v. Brown, 138 Ga. 328, 332 (6) (75 S. E. 330); Allen v. Heys, 204 Ga. 635, 637 (6) (51 S. E. 2d, 417); Atlantic Coast Line R. Co. v. Thomas, 83 Ga. App. 477, 490 (6) (64 S. E. 2d, 301); He-Po Gas, Inc. v. Roath, 87 Ga. App. 827 (75 S. E. 2d, 451). (b) The excerpt is correct as an abstract principle of law and is adjusted to the issues in the case.
3. In special ground 3 (numbered 6), error is assigned on the following excerpt from the charge, on the ground that it placed a greater burden of proof upon the defendant than is required by law in such a case: "Further, gentlemen, if the driver of the car in which the plaintiff was riding was negligent and the defendant was not negligent and the negligence of the driver of the car in which the plaintiff was riding was the proximate cause of the injury, if any, then the plaintiff would not be entitled to recovery in this proceeding." The trial court did not in any manner intimate that it was incumbent upon the defendant to prove that the driver of the car in which the plaintiff was riding was negligent and that such driver's negligence was the proximate cause of the plaintiff's injuries, but to the contrary the trial court had instructed the jury that the burden was on the plaintiff to prove the facts of her case by a preponderance of the evidence. In view of the pleadings, evidence, and the charge of the court as a whole, the excerpt excepted to was rather in the defendant's favor than to his detriment. This ground of the motion for new trial is not meritorious.
The opinion of witnesses, expert or non-expert, is submitted to juries under a different rule from that concerning testimony of witnesses who purport to swear the actual facts. It is the duty of the jury to accept as true testimony of the latter kind unless the witness is impeached or otherwise discredited, but the opinions of witnesses, expert or non-expert, are submitted to the jury for merely whatever the jury may think they are worth," the trial court erred in charging: "The jury upon review of the facts in the case or even by reference to their own experience may discard entirely the opinion of the most learned expert. And an expert witness cannot by categorical testimony decide the issue in a cause unless the jury approves his statement. An expert may aid the jury but he cannot perform the functions of a juror and under the guise of giving testimony state a legal conclusion." The portion of the charge complained of is correct as an abstract principle of law. Carroll v. Hartford Accident &c. Co., 73 Ga. App. 799, 802 (38 S. E. 2d, 185), and citations; Travelers Ins. Co. v. Thornton, 119 Ga. 455 (46 S. E. 678). It was applicable to the issues raised by the evidence, and does not constitute an expression of opinion by the court that the jury should completely disregard the testimony of the expert witnesses. This special ground is not meritorious for any reason assigned.
5. The general grounds of the motion for new trial were argued neither in the brief nor orally and were not generally insisted upon, and are therefore treated as abandoned.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.
Carlisle Cobb, Hubert M. Rylee, contra.
Erwin, Nix, Birchmore & Epting, for plaintiff in error.
DECIDED APRIL 11, 1953.
Saturday May 23 04:27 EDT


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