111 Ga. App. 576 | Ga. Ct. App. | 1965
The bill of exceptions certified by the trial judge was filed in the office of the clerk of the superior court on August 27, 1964. Under the law it should have been transmitted by him to the clerk of this court within 20 days of the
In the recent case of Murphy v. Harding, 220 Ga. 634 (140 SE2d 852), the Supreme Court, in construing and applying the provisions of Code § 6-1312 relating to the time within which the trial judge must certify the bill of exceptions, which Code section contains language forbidding the dismissal of the writ of error on account of the judge’s failure to certify the bill of exceptions within the time prescribed, (which is similar to the language of Code Ann. § 6-1301, prohibiting dismissal for failure
The evidence, while in conflict in many respects, was undisputed that the highway along which the defendant’s automobile was traveling was a through highway, and that the plaintiff entered that highway from a side road burdened with a stop sign. The defendant contended that his son, who was driving his automobile, was traveling along the through highway at a speed of no more than 60 miles per hour, and as he approached the side road on which the plaintiff was traveling, which intersected the through highway obliquely from defendant’s right, the plaintiff entered the through highway from the side road directly in front of the defendant’s son without first having stopped and yielded the right of way, and that this failure to stop was the proximate cause of the collision. The defendant filed a timely written request with the court to charge as follows: “I charge you that, under the law of this state, the driver of a vehicle entering a through highway is required to bring his or her vehicle to> a stop at the entrance to such through highway, and, having stopped shall not enter such intersection without having first yielded the right of way to other vehicles which have entered the intersection from said through highway and to such vehicles which are approaching so closely on said through highway as to constitute an immediate hazard.” In special ground 4 of the motion for a new trial error is assigned on the refusal of the court to charge as requested.
The plaintiff contends in opposition to this ground that there was no proof that the stop sign in question was erected pursuant
It may be further noted that the plaintiff in opposition to this ground of the motion for a new trial contends also that the collision here in question was not an intersection collision, but that it occurred after the plaintiff had approached McDuffie Road on Anderson Mill Road, stopped in obedience to the stop sign, observed that there was no traffic approaching so closely as to create an immediate hazard upon her entering the intersection, had entered the intersection, completed a right turn therein and moved therefrom a distance of more than 100 feet before her car was struck in the rear by the defendant’s car. This was the plaintiff’s contention, and we cannot say that it was not supported by some evidence, but the defendant’s contention was that his son was within 100 feet of the intersection and plainly in view at the time the plaintiff drove her automobile into the intersection without stopping. Under these circumstances the law applicable to' his contentions should have been submitted to the jury, and since there was a timely written request therefor, it was error for the court to refuse to charge in accordance with that request. Central of Ga. R. Co. v. Goodman, 119 Ga. 234 (2) (45 SE 969); Werk v. Big Bunker Hill Mining Corp., 193 Ga. 217 (5) (17 SE2d 825); Southern Exp. Co. v. Hughes, 23 Ga. App. 224 (1) (97 SE 860); Jones v. Lowman, 85 Ga. App. 743 (2), 746 (70 SE2d 122).
Ground 5 of the motion complains of the refusal of the court to charge a request. This ground fails to show that the request was timely submitted, that it was in writing, and by
The remaining special grounds of the anotion for a new trial are without aneait. The seventh ground relates to a request to charge, a portion of which states an incoa’rect rule of law. The eighth ground complains because the court excluded a question which called for a conclusion on the part of a witness, and of the exclusion of the answer thereto which clearly was a conclusion of the witness. The ninth ground complains of the refusal of the court to charge a written request embodying the principles of Code § 38-119 respecting the presumption arising from a-efusal to produce evidence. Assuming that this request embodied a pea'tineaat and applicable principle, it was equally as applicable to the defendant as to the plaintiff, and, therefore, the failure to charge it could not possibly have been harmful to the defendant.
With respect to the general grounds it is sufficient to say that the evidence was in sharp conflict and did not demand a verdict in favor of either party.
Judgment reversed.