39 S.E.2d 902 | Ga. Ct. App. | 1946
1. Under the pleadings and the evidence in this case, it was error for the court to omit to charge in substance that, if the plaintiff could have avoided the injury by the exercise of ordinary care, he could not recover, although no written request for such charge was submitted.
2. There was no error in permitting a witness to give his opinion that the collision occurred on the left side of the center line of the highway, where he stated the facts upon which such opinion was based, and where similar evidence by other witnesses was admitted without objection.
The defendants denied every allegation in the petition, charging negligence on their part, and alleged that the damages claimed by the plaintiff resulted wholly from the negligence and carelessness of the driver of his truck in driving it at the unlawful speed of fifty to sixty miles per hour, and in permitting the truck to cross over the center line of the highway and run into the car which the defendant, Billy Sikes, was driving; and the defendant, L. H. Sikes, in a cross-action, claimed damages against the plaintiff for the injuries to his car resulting from the collision with the plaintiff's truck.
Upon an issue of fact presented by the pleadings and by the testimony offered upon the trial, the jury found a verdict for the plaintiff. The motion for new trial filed by the defendants was overruled, and the case is here for review. 1. The plaintiffs in error contend that the court erred in not charging the jury as follows: "Even though you may believe that the driver of the car was negligent in some of the respects alleged in the petition, it would have been the duty of the driver of the truck to use ordinary care in avoiding such negligence, and if you believe that he could by the use of such ordinary care have avoided striking the car, then the plaintiff would not be entitled to recover." No written request to give this charge was made by the defendants, but they allege that the principle stated was not substantially covered by the general charge, and that it was directly involved and applicable to the issues in the case and should have been given without request. This contention seems correct. The petition alleged that the driver of the plaintiff's truck was not negligent, and that the sole cause of the damage to the truck was the negligence of the driver of the defendant's car; whereas the answer of the defendants charged that negligence of the plaintiff's *417 driver in driving the truck at an unlawful rate of speed, and over the center line of the highway, was the sole cause of the damage. The evidence, like the pleadings, was in direct conflict on the question of negligence. The testimony for each of the parties to the case tended to sustain their respective and conflicting theories as to who was negligent in causing the collision between the truck and the car.
We think that it was the duty of the court, under the pleadings and the evidence in this case, to charge in substance the principles of law set out by the plaintiffs in error. "In a suit for damages for personal injuries alleged to have been caused to the plaintiff by the negligence of the defendant, where the pleadings and the evidence made an issue as to whether the plaintiff's negligence was the proximate cause of the injury, or whether the plaintiff by the exercise of ordinary care could have avoided the consequences of the defendant's negligence, it is error for the court to omit to instruct the jury upon the law applicable to such defenses." Russell v. Bayne,
2. The plaintiffs in error complain of the admission over timely objection of certain testimony of the witness Dubose, giving his opinion that the car was across the white line to the left when the collision took place. The excerpt from the testimony must be considered in its context, and it appears therefrom that the witness gave the facts on which the opinion was based in testimony preceding and following the excerpt objected to. We do not think that the evidence was improperly admitted when considered in connection with all the testimony of the witness. See Ellison v. State,
3. The general grounds of the motion are not considered or passed upon.
Judgment reversed. Sutton, P. J., and Felton, J., concur.