This is an appeal by two plaintiffs from judgments rendered upon verdicts for defendants in their suits which had been consolidated for trial. In these suits plaintiffs sought recovery of damages for personal injuries sustained from a head-on collision between the automobile in which they were riding and a truck owned by defendant Franklin Aluminum Co. and driven by its co-defendant employee. Each party contended the driver of the other vehicle was on the wrong side of the highway at the time of the occurrence. Initially there were 19 enumerations of error but those numbered 5, 6, 7, 8, 9, 10, and 12 have been expressly abandoned. Those seven enumerations dealt with alleged errors in the judge having declined specific requests to charge. We will consider the remaining twelve enumerations in numerical sequence.
1. The first two enumerations deal with the overruling of two motions for continuance. These were independent motions made by plaintiffs at the time defendants presented separately two witnesses whose names had not been listed in answers to interrogatories. Both appellants and appellees have argued the applicability of
Nathan v. Duncan,
2. Ground number 3 asserts the court erred in "ruling inadmissible the results of a chemical test performed by Albert D. Poulin.” This was an expert witness who had conducted a laboratory study of the chemical contents of skid mark scrapings. These samples had been taken from the highway pavement more than 90 days after the occurrence. The transcript disclosed that thousands of vehicles daily traversed this highway. "In view of the presumption of the persistence of conditions of a continuing nature once shown to exist, evidence of the condition of a place at or from which an injury for which damages are sought is alleged to have occurred, within a reasonable time prior to such injury, is admissible in a proper case to show the character or condition of the place at the time of the injury, provided the condition or circumstances have not been materially changed in the interim. If the time is too remote, such evidence will be rejected. 45 C J 1238, § 801.
So far as the interval of time is concerned, no fixed rule should be laid down; the nature of the thing and the circumstances of the particular case must control. The matter should be left to the discretion of the trial court.
[Cits.]” (Emphasis supplied.)
Central of Georgia R. Co. v. Keating,
3. In the next enumerated error it is contended by appellants that the trial court erred in allowing a state trooper, presented by defendants as an expert witness, to give an opinion as to the location of the point of impact, the assertion being made that such opinion was not supported by the evidence. This suggestion is not meritorious. "[A] non-expert witness in expressing his opinion . . . must narrate the facts and circumstances upon which his conclusion is based, whereas an expert witness can express his opinion... upon proof being made that he was in a position to form an expert opinion, without the necessity of stating the facts forming the basis of his conclusion. [Cits.]”
Morgan v. Bell,
4. The eleventh enumeration of error complains of the failure to give plaintiffs’ request to charge number
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25 which appellants assert in their brief "was a full, fair and complete charge on plaintiffs’ claim for damages for a permanent decrease in their capacity to labor and earn money.” The verdicts here were for defendants, and thereby established that plaintiffs had no right to any damages. Where a verdict is returned for defendant, errors, if any, in a charge, failure to charge, or denial of request to charge, which deal with damages are regarded as harmless and afford no ground for reversal. See cases cited in 3 Ga. Digest under Appeal and Error, Key 1068 (4) and in footnote on pp. 156, 157 of
Maloy v. Dixon,
5. Ground 13 urges that "the court erred in giving a charge to the jury that plaintiffs could be guilty of negligence per se in not dimming their headlights since there was not any evidence whatsoever before the court that they failed to do so.” A reading of the court’s instruction on this phase shows that the charge was made applicable to both parties. Thus, it would come within the rule stated in
Dantel Corp. v. Whidby,
6. Ground 14 charges the court erred in failing to charge on expert opinion evidence. In the absence of a request to charge on the subject of expert testimony, the failure to charge thereon is no cause for new trial.
Godwin v. Atlantic C. L. R. Co.,
7. Ground 15 contends "The court erred in refusing to charge the parties were bound by the pleadings.” In the absence of a request to charge on this issue there is no error. " 'If a party desires instructions to the jury touching admissions made in the other party’s pleadings, he should present a proper request therefor.’ [Cit.]”
Georgia Power Co. v. Rabun,
8. The 16th ground contends the court should not have excused a juror who was an employee of the
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defendant. "An employee is not a competent juror to try a case in which his employer is a party.”
Atlantic C. L. R. Co. v. Bunn,
9. The 17th enumeration of error urges that the court erred in refusing to allow one of the plaintiffs to testify as to his prospects of receiving a raise in pay. As the jury found no liability on the part of the defendants, any erroneous rulings on questions and issues of damages would be harmless error.
Hieber v. Watt,
10. Ground 18 contends the court erred in ruling out the testimony of plaintiffs witness Robert Anderson. Although this testimony was originally excluded it was subsequently admitted after the withdrawal of defense counsel’s objection. Any error which may have been committed was thus made harmless.
Holderness v. Hutcheson Mfg. Co.,
11. Having reviewed the court’s charge in its entirety, we find the final enumeration concerning imputation of negligence from one plaintiff to another, to be without merit.
Judgment affirmed.