Lanier v. O'BEAR

115 S.E.2d 110, 101 Ga. App. 667, 1960 Ga. App. LEXIS 976
CourtCourt of Appeals of Georgia
DecidedApril 21, 1960
Docket38087
StatusPublished
Cited by8 cases

This text of 115 S.E.2d 110 (Lanier v. O'BEAR) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lanier v. O'BEAR, 115 S.E.2d 110, 101 Ga. App. 667, 1960 Ga. App. LEXIS 976 (Ga. Ct. App. 1960).

Opinions

Nichols, Judge.

1. Special ground numbered 4 of the amended motion for new trial complains of the admission of quoted testimony, but does not show who the witness was. “The first special ground of the motion is incomplete and cannot be considered because the name of the witness whose evidence was objected to is not made to appear therein. See Trammell v. Shirley, 38 Ga. App. 710, Rule 10, page 714 (145 S. E. 486).” Holsenbeck v. Arnold, 75 Ga. App. 311, 312 (43 S. E. 2d 348). Therefore, this ground of the amended motion for new trial cannot be considered.

2. In special grounds 6 and 7 error is assigned on excerpts from the court’s charge (1) that it is negligence per se to operate an automobile in excess of 35 miles per hour in a residential area, and (2) that it is negligence per se to operate an automobile on the public highway in excess of 60 miles per hour.

There is no contention that such excerpts did not state correct principles of law or that such excerpts were not authorized by the pleadings and the sole contention of the defendant is that there [668]*668was no evidence to- authorize such charge. “ ‘To warrant the court in charging the jury on a given topic . . . it is not necessary that the evidence should shine upon it with a clear light. It is enough if glimpses of it be afforded by the evidence. Truth is often dim but is truth nevertheless. Frequently amongst the facts best proved is one which no witness has mentioned in his testimony, such fact being an inference from other facts.’ Brown v. Mathews, 79 Ga. 1 (4 S. E. 13).” Everett v. Clegg, 94 Ga. App. 725, 730 (96 S. E. 2d 382).

There was evidence that the defendant was from 548 to 600 feet up the road when the plaintiff started across the road on his bicycle, that the defendant’s automobile skidded approximately 120 feet before coming to a stop, that it hit the plaintiff with enough force to throw him into the air about a foot and a half above the hood of the defendant’s automobile, that the plaintiff then struck the windshield of the defendant’s automobile, and' that the plaintiff hit the ground about 18 feet from the point of impact. While there was evidence that the defendant was traveling at a speed from 20 to 35 miles per hour, the evidence shown above was sufficient to authorize the excerpts from the charge complained of.

3. Special ground 8 assigns error on the following excerpt from the charge: “Now, Gentlemen, there is a degree of care that is chargeable to the defendant. In ordinary cases, the defendant must exercise ordinary care for the prevention of injury to himself. But there is an exception to that rule where a child under the age of fourteen years is concerned. Now, this is the law with reference to the degree of diligence required of a child under the age of fourteen. I charge you that children under fourteen years of age are chargeable with contributory negligence resulting from a want of such care as their mental and physical capacity fits them for exercising, and they assume the risk of those patent, obvious and known dangers which they are able to appreciate and avoid.”

The use of the italicized words “defendant” in the opening sentences of the excerpt rather than “plaintiff” is assigned as error. It is palpably clear that the use of the word “defendant” in the opening sentences was a mere “slip of the tongue” and [669]*669in view of the remainder of the, excerpt quoted could not have misled the jury. The plaintiff, according to the evidence adduced on the trial, was 12 years old at the time of the incident and the defendant 54 years old, and when the whole excerpt complained of is considered together the jury could not have been misled by the “slip of the tongue” by-the trial judge.

Error is also assigned on the remainder of the excerpt from the charge because it is contended that there is no exception to the rule that a “person must exercise ordinary care for the prevention of injury to himself.”

“Due care in a child of tender years- is such care as its capacity, mental and physical, fits it for exercising in the actual circumstances of the occasion and situation under investigation.” Code § 105-204. In Streetman v. Bussey, 25 Ga. App. 694, 696 (104 S. E. 517)) where recovery was sought because of injuries to a boy 13 years old who was struck while crossing a street, it was said: “In this case, however, the plaintiff, being a child less than fourteen years of age, was not bound to exercise the ordinary care exacted of every prudent man, but was bound only to exercise due care according to his age and capacity. Kendrick v. High Shoals Mfg. Co., 21 Ga. App. 315 (94 S. E. 987); Parks Ann. Code, § 3474 [Code of 1933, § 105-204, supra].” The rule given the jury in charge in the present case, was not error.

4. Special ground 9 assigns error on an excerpt from the charge as follows: “I charge you, Gentlemen, that whether a person was injured, the extent of his injury and consequent suffering is entirely a question for the jury; and where he testifies that he was injured and suffered, the jury can accept and credit his testimony based on his knowledge in preference to the evidence of a whole college of physicians that he was not injured. Take that, Gentlemen, in connection with the general charge that you are the judges of the evidence, where the preponderance of the evidence lies.”

The defendant does not contend that the charge here complained of was not a correct principle of law but asserts that he made no contention that the. plaintiff was not injured, and that the excerpt unduly emphasized the plaintiff’s testimony as to his injuries. The defendant introduced testimony of Dr. George [670]*670Pilcher, who testified from medical records in the case that the plaintiff’s health was not impaired when the medical record was completed, and that there was nothing in his opinion that would cause a person to lose weight “or to suffer pain for an extended period of months or not to be able to engage in athletic or other physical activities.” There was a definite conflict in this testimony and the testimony of the plaintiff that he was still suffering from the injuries at the time of the trial and the charge complained of was not error.

5. Special ground 10 complains of an excerpt of the charge dealing with damages because of a loss of ability to earn money in the. future because, among other things, “there was no evidence that there had been any future lost earnings or lost earning capacity in the future.”

The plaintiff testified as to his pain and suffering from the time of the injury up until the time of the trial, and as to what he could and could not do at that time, and to the fact that he was under medical care for such injuries at the time of the trial, but he did not testify as to what he would or would not be able to do in the future, or as to what pain and suffering he would undergo in the future. (Had he testified as to future pain and suffering such testimony would have been subject to objection. Ray v. Wood, 93 Ga. App. 763, 92 S. E. 2d 820). While Dr.

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Lanier v. O'BEAR
115 S.E.2d 110 (Court of Appeals of Georgia, 1960)

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Bluebook (online)
115 S.E.2d 110, 101 Ga. App. 667, 1960 Ga. App. LEXIS 976, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lanier-v-obear-gactapp-1960.