96 Ga. App. 21 | Ga. Ct. App. | 1957
1. As the general grounds of the motion for new trial were expressly abandoned by counsel for the plaintiff in error on oral argument in this court, such grounds will not be considered. Code § 6-1308.
2. A ground of a motion for new trial though approved is not valid if it is contradicted by the record. Harris & Co. v. Vallee & Co., 29 Ga. App. 769 (9) (116 S. E. 642); James v. Cooledge & Bro., 129 Ga. 860 (60 S. E. 182); Georgian Co. v. Kinney, 19 Ga. App. 732 (3) (92 S. E. 31). Under an application of this rule, special ground 1 of the motion for
Ezra Halbrook, a resident of Roxboro, North Carolina, brought an action for damages against Coy W. Oakley, also known as Troy Oakley. The material allegations of the petition as finally amended are substantially as follows: On August 1, 1953, at about 9 p. m., the plaintiff was walking across Broad Street within the marked crosswalk for pedestrians in Augusta, Georgia,
Judgment affirmed.
The plaintiff seeks to recover for physical and mental pain and suffering, loss of wages, loss of earning capacity, and medical expenses or damages, totalling $26,240.75.
On the trial, the jury returned a verdict for the defendant. The plaintiff’s motion for new trial, based on the usual general grounds which were expressly abandoned during oral argument before this court, and two special grounds, was denied, and the plaintiff assigns error on that judgment.
In special ground 1 of the motion for new trial, the plaintiff assigns error on the trial court’s failure to charge that the driver (the defendant) of the automobile that struck the plaintiff, was charged with the duty of exercising ordinary care and diligence in the operation of the automobile.
In special ground 2, the plaintiff assigns error on the following excerpt from the charge on the ground that there was no' evidence to support it: “Now, gentlemen of the jury, due care or ordinary care as applied to a suit is that care which an ordinary prudent person would act under the same or similar circumstances. Now it is the duty of the plaintiff to conduct himself in such a way as not to endanger himself. Even though the defendant may be negligent, if the plaintiff by the exercise of ordinary care and