The plaintiff, a fifteen-year-old boy, by his father sued his grandfather, the appellant, for injuries received in the summer of 1979 while plaintiff was employed as a worker on his grandfather’s tobacco farm. In his complaint, the plaintiff alleged that his right foot and leg became entangled in an exposed cog of a harvester when the defendant momentarily left the harvester upon which the grandfather, the plaintiff, and others were working. He demanded $50,000 in damages. On trial, the jury returned a verdict in favor of the plaintiff in the amount of $27,500. Defendant aрpeals, enumerating seven errors of the trial court. Held:
1. In his first two enumerations, appellant urges that the trial court erred in overruling his written motion for continuance filed and heаrd at pre-trial conference on January 30,1980 and again asserted immediately prior to trial on February 15,1980. We have no difficulty *237 whatever in holding that the trial court committed reversible error. The plaintiffs complaint in this case was filed December 6, 1979. Defendant answered January 4, 1980, denying any negligence and asserting that the plaintiffs injuries were the result of the plaintiffs own failure to exercise ordinary care. Also on that same date, January 4, defendant filed and served his “first interrogatories to plaintiff,” totaling some 37 questions concerning the case. On January 23,1980, plaintiff filed and gave notice that he intended to take the deposition of his physician on January 29, 1980. The day following that deposition, on January 30, the рarties attended a pre-trial hearing at which they submitted proposed pretrial orders. In the plaintiffs proposed pre-trial order is provided “either party may takе further discovery upon reasonable notice to opposing counsel,” to which it appears that the trial judge added in writing “thru Feb. 7,1980.” The case apparently was set for trial by the trial judge on February 15. However, on January 30 at that same pre-trial hearing, defendant filed a motion for continuance asserting that the action was filed Decembеr 6, 1979, and defendant had not had adequate time to complete discovery and prepare the case for trial at the February term of court, and in this connection showed that his interrogatories filed on January 4 were not required to be answered until February 6, 1980; and defendant further showed that he needed to take the plaintiffs deposition and to intеrview each person who was riding on the tobacco harvester at the time of the plaintiffs injury in order to properly investigate the case and prepare for triаl.
The order of thé trial judge, dated January 30, denied defendant’s motion for continuance, “subject to the following conditions: (a) that defendant’s first interrogatories be answered by the рlaintiff on or before Feb. 7,1980. If the plaintiff does not answer ... then this case will be removed from the February trial calendar and continued until the next term of court.” On February 7, plaintiff filed answers to interrogatories which answers numbered some 79 pages. On February 15, five working days after plaintiff filed these answers, the case proceeded to trial. Defendant madе written and oral motions for a continuance which were denied. The oral motion was based on the inaccessibility of a key witness due to illness. On review of the record and рroceedings, we hold that the trial court’s denial of defendant’s motions for continuance was an abuse of discretion (see
Baker v. Housing Auth.,
Code Ann. § 81A-140 (a) provides that “all civil cases... shаll be triable any time after the last day upon which defensive pleadings were required to be filed therein:
Provided, however, the court shall in all cases afford to the parties reasonable time for discovery
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procedures, subsequent to the date that such defensive pleadings were required to be filed...
” (Emphasis supplied.) The defendant in this case was exposed to considerable personal liability. The issues of fact and law were relatively numerous and strongly contested. Plaintiff in his answers to interrogatories indicated nearly twenty persons he might expect to call as witnesses either to the accident or to his medical and physical condition or in proof of other damages. Mоreover, on February 7, only five working days before trial on February 15, in his answers to interrogatories the plaintiff claimed that he could not reveal what he might expect these witnеsses to testify because he himself had not interviewed all the witnesses and his lawyer had interviewed none of them. In fact, the trial transcript discloses that over a period of two days, eight witnesses appeared for the plaintiff and two for the defendant. The plaintiff introduced 26 exhibits, including medical records, and photographs of the plaintiff and of numеrous harvester machinery parts. For this edifying experience, the defendant had had only 29 working days of discovery and 18 of those had already passed when he was informed that hе would have only 11 more, and only 5 more after plaintiff was to answer the defendant’s first interrogatories. If the defendant had not asked for a continuance or had already hаd a reasonable and adequate time for discovery (see
Puritan Fashions Corp. v. Naftel,
2. The trial court did not err in ovеrruling defendant’s motion for directed verdict. Directed verdict for the defendant is proper only “where there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom,
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shall demand a particular verdict” (Code Ann. § 81A-150 (a)). The plaintiff stated that the opening in the harvester and the gears and cogs where he stuck his foot were in plain view and that if he had looked where he placed his foot, he would not have placed his foot in the opening. This еvidence does not demand a verdict that the plaintiffs negligence was the sole cause of the accident, in view of the other evidence in the case. There wаs evidence in this case to support the verdict, and to support the plaintiffs contentions and the trial court did not err in refusing to direct a verdict for the defendant.
Speir v. Williams,
3. In charging that preponderance of the evidence is that which “a reasonable and impartial mind would believe is stronger than the evidence of the defendant,” the trial court erred. This language was expressly disapproved in
Superior Paving v. Citadel Cement Corp.,
It was also error to fail to charge as to the plaintiffs duty to еxercise ordinary care, and any reference to that duty in connection with other portions of the charge are not helpful where the jury has not been instructed that suсh a duty is imposed upon the plaintiff by law. The trial court erred in instructing as to comparative negligence in a manner which implied that if both parties were at fault the plaintiff might still rеcover, even though the plaintiff might have been proportionately more or equally at fault. See
Underwood v. Atlanta & W. P. R. Co.,
Judgment reversed.