22 Ga. App. 376 | Ga. Ct. App. | 1918
Lead Opinion
Mary Bearden, by her next friend, W. P. Bearden, brought suit against the Mayor and City Council of Madison for damages on account of personal injuries. The jury returned a verdict in her favor, and the city made a motion for a new trial upon the usual general grounds and certain special grounds which the court overruled, and the defendant excepts.
"Where an erroneous instruction is given on a material issue, the error is not rendered harmless by-a subsequent statement of the judge giving the correct rule in another part of his charge. He must make it plain and clear to the jury that the first instruction was incorrect and is expressly retracted, and that the subsequent statement is correct and is substituted for the incorrect one; and it must appear therefore that the jury could not have been mislead or confused by the two inconsistent statements.” Pelham Mfg. Co., v. Powell, 6 Ga. App 308 (4) (64 S. E. 1116). new trial necessarily results from the erroneous charge. See also Savannah Electric Co. v. McClelland, 128 Ga. 87 (57 S. E. 91); Morris v. Warlick 118 Ga. 421 (45 S. E. 407); Rowe v. Spencer, 132 Ga. 426 (64 S. E. 468); Atlanta & Birmingham Air-Line Railway v. McManus, 1 Ga. App. 302 (5 a) (58 S. E. 258); A. C. L. R. Co. v. Canty, 12 Ga. App. 411 (2), 415 (77 S. E. 659), and citations.
It is not necessary to pass upon the other grounds of the motion. If any other errors were committed, they will not likely 'occur upon another trial. The court erred in overruling the motion, and the judgment is
Reversed.
Concurrence Opinion
concurring specially. I agree that the'judgment of the lower court overruling’ the motion for a new trial should be reversed, but not for the reason stated in the opinion of the majority of this court. I do not think that the error in the excerpt from the charge, as complained of in the 4th special ground of the motion for a new trial, requires a new trial, as, in my opinion, this error was cured by the supplemental charge, in which the correct rule of law was so plainly stated that I do not
The plaintiff sued for general damages, and for pain and suffering. The petition did not claim any special damages, and none were proved. Under such circumstances, it was, in my opinion, erroneous for the judge to charge upon the subject of special damages, and I think it is probable that this charge confused and misled the jury. For this reason I agree with my colleagues that a new trial of .the ease is required.