The defendant contends that a portion of the trial judge’s instructions to the jury was incorrect and that an erroneous word was used which served to misstate the law.
Pursuant to Code Ann. § 6-805 (f) (Ga. L. 1965, pp. 18, 24), the trial judge and court reporter have certified to this court that the transcript is incorrect in that the trial judge actually used the word "cases” instead of the word "words” as is stated in the transcript. As corrected the charge is taken verbatim from Code § 105-603 and thus was not erroneous as a matter of law.
It is further urged that the trial judge should have gone further and given a complete charge on comparative negligence. However, the defendant did not make a request to
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charge in this regard. It is well settled that a correct and applicable instruction is not error merely becausе of the failure of the court to amplify such instruction. If further and more detailed instructions were required, a timely request should have been submitted.
Seaboard A.-L. R. v. Devlin,
This is especially true where as herе the charge which the defendant contends is incomplete was given in response to his own request.
Enumerations of error 1 and 2 are without merit.
It is urged that the trial judge erred in allowing the plaintiff’s petition to go out with the jury sincе the petition contained specifications of damages to the plaintiff’s automobile, which damages it is contended were not supported by any evidence.
It is well settled that a trial judge does not commit error by reading the plaintiff’s contentions as set forth in his petition even where such contentions are not supported by competent evidence.
Limbert v. Bishop,
Enumeration of error 8 does not show error.
The plaintiff’s petition sought to recover as special damages for "lost time — 19 days at $3.50 an hour (7/2/70 to 7/22/70)” in the amount of $392. During the trial of the case the plaintiff testified that he was absent from work from July 2 to July 21, 1970; that he missed nineteen 8-hour days. In response to the question "multiply it out by *672 what you make per hour, what does that come to,” he replied "three dollars and fifty cents an hour, around $390.” The trial judge charged the jury: "If you find that the plaintiff suffered a financial loss by being away from his usual occupation and means of livelihood for any period shown to you by the evidence, and you should find that he is otherwise еntitled to recover, you may award to him as damages such loss of earnings as you find he actually suffered in this case.” He then subsequently recharged the jury in greater detail with regard to lost wages, setting out that the jury was to be guided by the amount and the length of time he was out of employment. He further charged that if the plaintiff actually lost time from employment and if the evidence showed his rate of pay during the period of lost time and the amount of time he lost, then that sum of money should be awarded in his favor.
The defendant contends that therе was no evidence of loss of earnings; that the court confused loss of earnings and lost time; that lost time is properly included in general damages and that the only measure оf such damages is the enlightened conscience of impartial jurors. The defendant also contends that the court erred in twice charging in this regard; however, this objection was not made in the lower court and will not be considered here.
Pirkle v. Widener,
As set out in the statement of fact the plaintiff showed the number of days he missed from work and what his wages were. Defendаnt’s argument as to no evidence is without merit.
Western & A. R. Co. v. Sellers,
This case is controlled by
Wright v. Lail,
Assuming but not deciding that the charge in the case sub judice did place "lost time” in the category of sрecial damages instead of general damages where defendant contends it belongs (see however
Reynolds v. Rentz,
Enumerations of error 3 through 7 and 9 are without merit.
4. Error is assigned to the sustaining of an objection to the following question: "Did you draw your pay for any other days other, between July 1 and July 28?” To which the plaintiff replied: "After some discussion I did.” Counsel *674 for the defendant argues that he should have been allowed to cross examine the plaintiff as to wages paid by his employer while the рlaintiff was away from work since the plaintiff was seeking to recover the value of such wages.
Any error in restricting an examination into this subject was harmless. Under the "collateral source rule” payments made, either voluntarily or contractually, by a third party who was not a joint tortfeasor would not serve to diminish a tortfeasor’s liability.
Wachtel v. Leonard,
Enumeration of error 12 is not meritorious.
Enumeration of errоr 10 complains of the following charge: "I charge you further, that negligence may be shown by circumstances as well as by direct testimony. If considering all the surroundings and accomрanying circumstances, an event is such as in the ordinary course of things would not have occurred, if the defendant had been using ordinary care, negligence may be presumed and places upon the defendant the burden of explaining the course of the occurrence.”
It is contended that the language used is not the law of this State and that the сharge includes the legal theory of res ipsa loquitur which is not applicable to the situation in this case. It is true that the doctrine of res ipsa loquitur is not applicable where the act asserted to be negligence is known and where the intervention of an intermediary cause could have produced the injury.
Parker v. Dailey,
The following charge is assigned as error: "I charge you further, ladies and gentlemen of the jury, considering whether the operator of an automobile exercised due diligence, or by failure to exercise due diligence was guilty of negligence, the character of the instrumentality which he operated, and the danger attached to its operation if improperly used, as well as the character of the highway being traversed, and the probability of inflicting injury if all needed care was not used in the operation of the machine, are all to be taken into account in determining whether the operator of the automobile usеd due diligence, or was guilty of negligence in this case.”
The identical charge was approved in
Huckabee v. Grace,
Enumeration of error 11 is without merit.
The grounds complaining of the insufflciency of the evidence to support the verdict are without merit.
Judgment affirmed.