137 Ga. App. 615 | Ga. Ct. App. | 1976
In this action by a husband and wife for damages for her slipping and falling, while a customer of the defendant’s, on the defendant’s concrete ramp as a result of its alleged negligent construction and maintenance by the defendant, the plaintiffs appeal from the verdict and judgment for the defendant.
1. The charge objected to in enumerated error 1 was comprised of instructions approved in Boyd v. Boyd, 173 Ga. 139, 144 (2) (159 SE 674) and Richards v. Harpe, 42 Ga. App. 123 (12) (155 SE 85). The trial judge elsewhere clearly defined the term preponderance of evidence and fully set forth the method of determining where the
2. The defendant’s eighth request to charge, based on language in Pilgreen v. Hanson, 94 Ga. App. 423, 425 (94 SE2d 752), was as follows: "The plaintiff cannot recover against the defendant without proving that the alleged defect in the ramp which the plaintiff contends caused her to slip, if you find from the evidence it was a patent defect, was for some reason not connected with any negligence on the ¡plaintiffs part not patent or obvious to the plaintiff(Emphasis supplied.) The judge’s omission of the italicized phrase in giving the above requested charge, made the charge illogical, as the appellants contend, as it did not complete the sentence, hence did not convey the true meaning of the principle involved. This error was not reversible as contended in enumerated error 2, however, since the omission was supplied by other instructions, such as, "If the alleged defect is not of such a nature and character as to be necessarily seen in the exercise of ordinary care by the person coming upon the premises, then the owner and occupier may be found guilty of negligence, if you find he was negligent or knowingly maintained the premises in such a fashion as to deviate from the standard of ordinary care.”
3. In enumerated error 3 it is contended that the charge — "if the plaintiff did look where she was walking and the alleged defect was clearly visible and could have been seen by anyone who did look, the plaintiff cannot recover.” (emphasis supplied) — erroneously substituted the standard of "anyone” for that of the "ordinary prudent person.” The correct standard was given elsewhere in the charge; therefore, this enumerated error is without merit.
4. The judge charged the jury, "if you find from the evidence in this case that the plaintiff has testified to facts in one instance and also testified that she does not know them to be true, this neutralizes her testimony and proves nothing.” Enumerated error 4 contends that this charge is inconsistent with another charge given, to the effect that
5. The charge complained of in enumerated error 5 is that "if you find from the evidence in this case that the plaintiff testifies, is self-contradictory, vague or equivocal and without other evidence to the right of recovery, she is not entitled to recover against the defendant and the verdict would be against the plaintiff.” This charge stated a correct principle of law, set forth in Douglas v. Sumner, 213 Ga. 82, 85 (97 SE2d 122), cited in Dykes v. Hammock, supra, and was not inconsistent with the jury’s right to determine witnesses’ credibility, as we held in Division 4 hereinabove. In reviewing this and the other charges enumerated as error, we have applied the principle of looking to the charge in its entirety to determine whether it is misleading. See State Hwy. Dept. v. Davis, 129 Ga. App. 142 (1) (199 SE2d 275) and cits.
6. The verdict and judgment were authorized by expert testimony that the ramp as constructed and maintained met the current commonly used safety standards and by evidence, including the plaintiffs testimony, that the area was adequately lighted, that she had used the ramp before, that she didn’t know why she had slipped, and that after the fall nothing was observed in the vicinity of the ramp on which the plaintiff might have fallen.
Judgment affirmed.
