Metropolitan Transit System, Inc. v. Barnette

153 S.E.2d 656, 115 Ga. App. 17, 1967 Ga. App. LEXIS 985

• Court: Court of Appeals of Georgia
• Decided: January 11, 1967
• Docket: 42484
• Status: Published

Opinion

Hall, Judge.

The defendant appeals from a judgment for the plaintiff in a negligence action arising out of a collision by the defendant’s bus with the rear of the plaintiff’s automobile which was stopped at a red light. Held:

1. Enumerations of error 1, 2, 3 and 4 are without merit. No party can complain of the giving or the failure to give an instruction to the jury, unless he objects thereto before the jury returns its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Ga. L. 1965, p. 18, as amended, Ga. L. 1966, p. 493.

Under Sec. 17 (c) of the Appellate Practice Act (Code Ann. § 70-207 (c)) nothing is presented for consideration on appeal unless it appears that the error contended is “blatantly apparent and prejudicial” (Hollywood Baptist Church v. State Highway Dept., 114 Ga. App. 98, 99 (3) (150 SE2d 271)), and that a “gross miscarriage of justice attributable to it is about to result.” Nathan v. Duncan, 113 Ga. App. 630, 638 (6b) (149 SE2d 383). The enumerations of error here do not meet that test.

2. A pre-trial order, limiting the issues for trial, controls the subsequent course of the action unless modified at the trial. Code Ann. § 81-1014. Dumas v. Beasley, 218 Ga. 349 (128 SE2d 59). The pre-trial order entered in this case specified only two issues neither of which was concerned with venue. No request was made to modify this order at any time prior to or during the trial; therefore, the defendant is bound by its provisions. Enumeration of error 5, on the ground that the plaintiff failed to prove venue, is without merit.

Eberhardt, J., concurs. Felton, C. J., concurs in the judgment. Argued January 3, 1967 Decided January 11, 1967. Hansell, Post, Brandon & Dorsey, Dent Aeree, for appellant. Wallace, Wallace & Driebe, Albert B. Wallace, Smith, Cohen, Ringel, Kohler, Martin & Lowe, H. A. Stephens, Jr., for appellee.

Judgment affirmed.