48 Ga. App. 566 | Ga. Ct. App. | 1934
1. It is well settled that where the pleadings and the evidence raise the issue of whether the plaintiff by the exercise of ordinary care could have avoided the consequences of the defendant’s negligence, it is the duty of the trial judge to give this principle in charge to the jury without request. Atlanta &c. Ry. Co. v. Gardner, 122 Ga. 82 (49 S. E. 818); Deen v. Wheeler, 7 Ga. App. 507 (67 S. E. 212) ; Jackson v. Georgia R. &c. Co., 7 Ga. App. 644 (67 S. E. 898); Georgia Ry. & Power Co. v. Freeney, 22 Ga. App. 457 (96 S. E. 575); Central of Ga. Ry. Co. v. Reid, 23 Ga. App. 694 (99 S. E. 235) ; Davis v. Whitcomb, 30 Ga. App. 497 (118 S. E. 488); Olliff v. Howard, 33 Ga. App. 778 (127 S. E. 821) ; Davies v. West Lumber Co., 32 Ga. App. 460 (123 S. E. 757) ; Atlantic Coast Line R. Co. v. Canty, 12 Ga. App. 411 (77 S. E. 659) ; Southern Ry. Co. v. Gore, 128 Ga. 627 (58 S. E. 180); Atlantic Coast Line R. Co. v. Anderson, 35 Ga. App. 292 (133 S. E. 63). Where there is a general denial by the defendant of a paragraph of the plaintiff’s petition alleging that he was in the exercise of ordinary care (Ga. Ry. & Power Co. v. Freeney, supra, Olliff v. Howard, supra), or where such defense is expressly pleaded, and the evidence of the plaintiff (Southern Cotton-Oil Co. v. Caleb, 143 Ga. 585, 85 S. E. 707), or of the defendant,
2. The court fully and fairly submitted to the jury the question as to the agency of the driver of the taxicab, and their verdict has his approval and will not be disturbed by this court. This case is clearly distinguishable from Cantrell v. Hertz Driveurself Stations, 40 Ga. App. 841 (151 S. E. 694).
3. The error, if any, with reference to there being no pleading or evidence to .sustain the charge of the court with reference to loss of earnings while incapacitated for work, is cured by the voluntary writing off from the verdict of an amount equal to what could have been recovered as a maximum therefor under the evidence.
4. The other assignments of error are manifestly without merit. 'The verdict is supported by ample evidence.
Judgment affirmed.