Nаomi Mattox appeals from the final judgment entered in favor of appellee and denying appellant’s motion for new trial.
Appellant was a regular rider of MARTA for two-and-one-half yеars prior to the incident. She was injured when, after she boarded the train, her foot became lodged in the approximate 3-3/4 inch “gap” between the side of the train and the platform. Held:
1. In this state, a common carrier of passengers is not an absolute and unqualified insurer of the safety of its passengers. Rather, “[a] carrier of passengers must exercise extraordinary diligence tо protect the lives and persons of his passengers but is not liable for injuries to them after having used such diligence.” OCGA § 46-9-132.
“[0]n appeal, we must construe the evidence most strongly to support the jury verdict and the judgment”
(Department of Transp. v. Hillside Motors,
“It is ordinarily for the jury to determine whether the performance or non-performance of a specific act is in compliance with the duty imposed on a carrier by the provisions of [OCGA § 46-9-132] as to the exercise by it of extraordinary care and diligence. [Cit.] What facts suffice to show the exercise of such extraordinary diligence is ordinarily for the jury.”
Modern Coach Corp. v. Faver,
2. Appellant’s third enumeration of error is without merit. Appellant’s requested charge number 16, as сrafted, was overly broad and confusing. “If any portion of the request is inapt, incorrect, or not authorized by the evidence, denial of the request is proper.”
Llop v. McDaniel, Chorey &c.,
3. Appellant’s fourth enumeration of error is without merit. The trial court instructed the jury regarding the duty of a carrier of passengers to “exercise extraordinary diligence to protect the lives and persons of [the carriеr’s] passengers” (OCGA § 46-9-132), and precisely defined extraordinary diligence as follows: “the extraordinary diligence due by a carrier of passengers to those passengers is that extreme carе and caution which very prudent and thoughtful persons exercise under like circumstances.” This instruction substantially covered the legal principles contained in requested charge number 11. Milam, supra.
4. Appellant’s contention that the trial court erred in refusing to give its requested charge number 12 is without merit. The first paragraph of appellant’s requested charge number 12 is both confusing and misleading, particulаrly as it states “[t]he law does not fix an exact or a precise definition of . . . extraordinary diligence” when the charge given the jury contained a precise definition of extraordinary diligence as above discussed. “ ‘ “ ‘A request to charge itself must be correct, legal, apt, even perfect, and precisely adjusted to some principle involved in the case. If
any portion
of the requеst is inapt or incorrect, denial of the request is proper.’ (Cits.)” (Cits.)’ [Cit.]” (Emphasis supplied.)
Annis v. Tomberlin &c. Assoc.,
5. The first paragraph of appellant’s request to charge number 13 was substantially covered by the trial court’s сharge to the jury regarding MARTA’s duty to exercise “extraordinary diligence,” by its definition of the term “extraordinary diligence,” and by its charge as to the arising of a rebuttable presumption of negligence when it is shown a passenger was injured in the process of boarding the train. Regarding the second paragraph of the requested charge, that portion thereof relating to circumstances whеre “MARTA has not allowed a passenger a sufficiently reasonable time and opportunity to enter the train without danger” neither was reasonably raised by the evidence nor tailored therеto. Appellant in effect testified she had entered the train without incident, but then for some reason unknown to her, suddenly found her leg lodged within the gap. Only speculation unsupported by fact apрears in the record regarding what caused appellant’s leg to become so lodged, as appellant admitted repeatedly during her trial testimony that she did not know how the incident occurred. As a portion of the charge was inapt, the trial court did not err in declining to give the requested charge to the jury. Annis, supra; Llop, supra.
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6. The trial court did not err in declining to give appellant’s request to charge number 20. The trial court charged the jury that negligent or wrongful acts may be established either by direct or circumstantial evidence. The court further charged that “[i]n order for a party to be liablе for negligence, it is not necessary that the party should have been able to anticipate the particular consequences which have resulted. It is sufficient if in ordinary prudence that рarty might have foreseen that some injury would result from the party’s act or omission or that consequences of a generally injurious nature might result.” This latter charge is virtually identical to appellаnt’s request to charge number 8. Appellant’s request number 20 appears to be but a particularized application of the broad principles of foreseeability and proof of an ultimate issue by circumstantial evidence. Cf.
Renner v. State,
7. While it would not constitute error to refuse to charge the jury regarding accident
(Benson v. Hunter,
8. As a general rule, the admission of evidence is a matter which rests largely within the sound discretion of the trial court
(West v. Nodvin,
Judgment affirmed.