38 Ga. App. 337 | Ga. Ct. App. | 1928
O. J. Beavers sued the City of Manchester, alleging in part that on December 26, 1924, about eight o’clock at night he fell into a hole which was located partly in Main street and partly in the sidewalk adjacent thereto, which hole was about 10 or 12 feet long, 4 or 5 feet wide, and 2 or 3 feet deep; that he
The petition was filed to the April term, 1927, of the city court of Greenville. An answer was filed to the first term. At the October term the petition was amended, but the amendment made no material change in the cause of action. Therefore these amendments did not open the petition to demurrer. Kelly v. Strouse, 116 Ga. 872 (1b) (43 S. E. 280). At the October term the defendant orally demurred to the petition as amended. These demurrers were properly overruled. “All exceptions to petitions and pleas shall be taken at the first term.” Austin v. Ferst’s Sons Co., 2 Ga. App. 91 (58 S. E. 318). See Brown v. C. & N. Ry. Co., 119 Ga. 88 (46 S. E. 71); Kelly v. Strouse, supra; Calhoun v. Mosley, 114 Ga. 641 (2) (40 S. E. 714); Civil Code (1910), §§ 5628, 5630.
In a ground of the motion for a new trial which complains of the admission of testimony it must appear how the testimony which was admitted over objection was material, and how its admission could have been hurtful to the movant. Hunter v. State, 148 Ga. 566 (2) (97 S. E. 523). “Objections to the admission of testimony are insufficient where no specific ground of .objection is stated. An objection on the ground that the testimony is 'not competent or is inadmissible is not sufficient.” Parker v. State,
The 5th ground of the amendment to the motion for a new trial alleges that the court erred in admitting, over objection, the following evidence: “I lost 18 days from my business on account of these injuries, 17 or 18 days on account of the injuries.” This ground shows no cause for the grant of a new trial. “A special ground of a motion for a new trial must be complete within itself, and this court will not consider a ground which complains of the admitting of specified evidence the materiality of which can not be determined without an examination of the brief of evidence or of some other part of the record.” Mayor &c. of Gainesville v. White, 27 Ga. App. 16 (107 S. E. 571); Veal v. State, 27 Ga. App. 300 (3) (108 S. E. 244); Cœsar v. State, 22 Ga. App. 796 (97 S. E. 255); Tice Co. v. Evans, supra; Wellborn v. State, 32 Ga. App. 55 (2) (122 S. E. 648); Veal v. Montgomery, 31 Ga. App. 20 (3) (120 S. E. 26).
“Rulings upon the sufficiency of pleadings are not proper subject-matter for a motion for a new trial.” Coulson v. State, 13 Ga. App. 148 (2), 150 (78 S. E. 1108), and cit.; Tompkins v. American Land Co., 139 Ga. 377 (2) (77 S. E. 623), and cit.
The court is alleged to have erred in ruling out evidence of certain experiments made by one W. E. Smith. In DeLoach Mill
The court in charging the jury used the words “reasonable care and diligence” instead of th.e words “ordinary care and diligence,” and error is assigned thereon in the motion for a new trial. This is not such error as will require the grant of a new trial. In Goodwyn v. Central of Ga. Ry. Co., 2 Ga. App. 470 (4) (58 S. E. 688), this court held: “The words ‘ordinary care’ embody the same degree of diligence as the words ‘ ordinary and reasonable care and diligence,’ and have substantially the same significance. The words ‘ordinary’ and ‘reasonable,’ descriptive of diligence, are synonymous, and are used interchangeably in statutes and by the courts.” See also Atlanta, K. & N. Ry. Co. v. Tilson, 131 Ga. 395, 403 (62 S. E. 281); Central of Ga. Ry. Co. v. Mote, 131 Ga. 166 (5) (62 S. E. 164).
Under the petition and the facts developed on the trial, and in the light of the entire charge, the court did not err in either of the following excerpts from the charge of which complaint is made : “He seeks to recover for damages to his clothing were torn and ruined. Well, that is an element of damage for which he could recover, if the defendant is liable, if he has shown by evidence the amount of damage to his clothing.” “He also claims damage for his alleged permanent diminution of his ability to labor. That is also a matter for you to determine. Has his ability to labor been diminished ? Will it continue in the future ? If so, how long and
When the entire charge is considered, the refusal of the court to give certain requested instructions, as set out in the 14th special ground of the motion, was not error. Moreover, this ground of the. motion is not in proper form for consideration, it not being alleged that the requested instructions were pertinent and applicable to the facts of the case. Hightower v. State, 33 Ga. App. 73 (125 S. E. 511).
There was ample evidence to support the finding of the jury.
Judgment affirmed.