11 S.E.2d 834 | Ga. Ct. App. | 1940
Lead Opinion
1. In charging to the jury the provisions of the Code, § 38-107, the better practice is to charge the section in its entirety. The omission, whether through inadvertence or not, to charge some of the provisions therein contained, may or may not be error, dependent on the issues of the particular case under consideration. In the present case, the failure of the court to charge "their interest or want of interest," while giving in charge such section, does not require a reversal. The weight of the evidence being considered was not clearly dependent on that being given by parties at interest, and there being no request to charge its omission was not error.
2. In the absence of timely written request to charge, it is not cause requiring the grant of a new trial that the judge failed to charge the law with respect to contradictory evidence or with respect to the credibility of witnesses.
3. In the absence of a request to charge, a new trial will not be granted because of the failure of the trial judge to give the jury instructions as to impeachment of witnesses.
4. While it is error to charge the jury that the degree of care exercised must be such as would or could prevent injury to others, it is not error to charge that a defendant in the operation of his car is required to use ordinary care to prevent injury to others. In such case the requirement that the defendant be in the exercise of ordinary care is for the purpose of preventing injury to others. *785
5. The remaining assignments of error show no cause for reversal. The evidence supported the verdict, and the court did not err in overruling the motion for new trial.
The petition alleged, that the defendant was negligent in that the car was being operated at the time by an inexperienced driver who was being taught how to drive at the time by an instructor sitting by him; that neither the instructor nor the driver was keeping a lookout ahead, and failed to see the boy on the bicycle, although he was in plain view and it was midday. The bicycle was being operated at a speed of about ten miles per hour. It was alleged, that the car was being operated at a distance from the curb of four or five feet, on approaching the boy on the bicycle, until it arrived at a point even with or alongside the boy, when the operator turned the car to the right toward the curb and forced the boy to the curbing, and caused the side of the car to strike the bicycle, and thus caused his death; that there was no reason or cause for the car being turned to the right toward the boy, as there was no obstruction or other traffic; that the car was at least five feet from the center on the right side of the street; and that no signal was given of the approach of the car, and the turning of the car to the right was unnecessary and negligent. The defendant in its answer *786 alleged that the boy negligently rode his bicycle against the side of the car, and thus caused his death; and that the defendant was not negligent in any of the particulars alleged.
The evidence hinged largely on the question whether the trolley was turned to the right as it was passing the bicycle, and thus struck the handle-bar. We can not say that the jury was not authorized so to find; and if so, the verdict was supported by the evidence. One of the grounds of negligence charged that the turning of the car to the right did not leave the boy room to operate his bicycle. This particular allegation may not have been supported by the evidence; and yet, under the other allegations which were supported, the car was unnecessarily and negligently turned to the right and was thus caused to strike the bicycle ridden by the boy alongside the car.
Complaint is made because the court, in charging to the jury the provisions of the Code, § 38-107, failed to charge that the "interest or want of interest" of the witnesses should be taken into consideration in determining where the preponderance of the evidence lies, this clause not having been given when the section was charged. We wish to say that the language used inGossett v. Wilder,
The father of the boy testified as to the question of dependency. There was no conflict in the evidence on this point, nor did any other testimony given by him raise such an issue as would show error in the failure to give in charge this provision. The interest or want of interest of other witnesses in the case was not so apparent as necessarily to require that this provision be given in charge. If the case had hinged on this point, or if counsel had thought it of such importance, a request to charge should have been presented. *788
Various assignments of error, in respect to alleged failure of the court to give more specific instructions in reference to the rules of evidence for determining the credibility of witnesses, are presented. Failure to charge as to the credibility of witnesses, in the absence of request, is not a ground for new trial. Code, § 38-1805, and cit. Nor is a failure to charge on impeachment, in the absence of a timely written request, reversible error. This principle is so well established as to need no citation of authority. The charge as given was sufficiently full to enlighten the jury on the question of the credibility of witnesses. If further instruction was desired, it should have been requested.
Complaint is made that the court charged the jury as follows: "Gentlemen, I charge you that a street railway company operating a trackless trolley upon its lines is required, in the operation of the car, to use ordinary care to prevent injuries to others. Now ordinary care means that degree of care which every prudent person would exercise under the same or similar circumstances. If in the operation of the trackless trolley car the defendant failed to use that degree of care which every prudent person would use in the operation of such a car under like or similar circumstances, that would be an act of negligence. If, on the other hand, defendant company, in the operation of the car, did use that degree of care which every prudent person would exercise under the same or similar circumstances to prevent injury to others, then the defendant would not be negligent." It is insisted that the charge that the defendant in the operation of its car is required "to use ordinary care to prevent injuries to others," is an incorrect statement of the law, which will require a reversal in this case. Louisville Nashville RailroadCo. v. Rogers,
The remaining assignments of error in respect to the charge are not meritorious, and require no discussion. The assignments of error on rulings on evidence show no cause for reversal. The evidence supported the verdict, and the court did not err in overruling the motion for new trial.
Judgment affirmed. Sutton and MacIntyre, JJ., concur.Broyles, C. J., disqualified.
Addendum
The judgment in this case having been affirmed on September 24, 1940, and on the same date a motion for rehearing having been duly made by the plaintiff in error, on the grounds as therein set out, among which was that the judgment of affirmance was by one Judge only of those who originally heard the oral arguments *790 on the original call of the case, one of the remaining two being disqualified (without notice to plaintiff in error on the original call of the case), and the other one subsequently becoming deceased, his successor being one of the two Judges rendering the decision of September 24, 1940, and it being argued that plaintiff in error was entitled to have had a full bench of three Judges to hear oral arguments upon issues made by the original exceptions, who should thereafter render decision, and it being moved that the judgment of September 24, 1940, be vacated and the judgment of the trial court reversed; and the motion for rehearing having been allowed, and oral arguments had pursuant thereto, before a full bench of three Judges presently qualified to pass upon all issues arising under the motion and as presented by the bill of exceptions, the prayers of the motion to vacate the judgment of affirmance and to reverse the judgment of the trial court are denied. The judgment of affirmance by this court is adhered to.
Sutton and MacIntyre, JJ.,concur.