358 S.E.2d 668 | Ga. Ct. App. | 1987
Appellant-plaintiff was a passenger in an automobile which struck a cow that had wandered onto the roadway. The cow belonged to appellee-defendant and had somehow escaped from its fenced-in enclosure. Appellant brought suit to recover for injuries he sustained in the collision. The jury returned a verdict in favor of appellee. Appellant appeals from the judgment entered on the jury’s verdict and from the denial of his motion for a new trial.
1. Appellant enumerates as error the trial court’s charge on the theory of accident. The contention is that the charge was erroneous for two reasons. First, appellant urges that accident was not raised by the evidence, and therefore, no charge on the theory was authorized. Second, he asserts that the charge that was given was an erroneous statement of the theory of accident.
Prior to consideration of the merits of this enumeration, a procedural issue must be addressed. After instructing the jury in the case sub judice, the trial court informed counsel that it would “allow [them] to reserve [their] exceptions until after the transcript [had] been prepared, or [they could] state them [then], whichever [they] preferred].” Appellant’s counsel responded that he “would elect. . . just to call to [the court’s] attention that [charge] on an accident [and] would like to reserve the right to make any further more detailed exceptions until the transcript comes out.” Notwithstanding the trial court’s statement to counsel regarding the time for raising objections to its charge, the applicable statute provides: “Except as otherwise provided in this Code section, in all civil cases, no party
“[T]here was evidence here . . . that the loss of control over the [cow] and the failure to have the animal properly penned at the time of the collision were for reasons other than appellee’s failure to exercise ordinary reasonable care in this regard. [Cits.] There was also evidence that [the collision in which appellant was injured] was not the result of a failure to exercise due diligence for his own safety. [Cit.J Thus there was evidence which would authorize a finding that the collision and resulting injuries occurred even though neither appellant nor appellee was negligent with regard thereto. [Cit.] Since the evidence supported a finding that the collision was, ‘an unintended occurrence which could not have been prevented by the exercise of reasonable care’ the trial judge did not err in charging on accident.” Pirkle v. Triplett, 155 Ga. App. 945, 946-47 (3) (274 SE2d 59) (1980). There was no error in giving a charge on the defense of accident in this case.
2. Appellant enumerates as error the trial court’s refusal to admit into evidence some 18 of 20 photographs which were proffered. The photographs had been made some seventeen months after the collision, and it was established that the scenes that were depicted in the 18 that were excluded had undergone substantial and material changes in the interim.
It is within the trial court’s discretion to determine whether or
Judgment affirmed.