Collins v. Porterfield., 102 Ga. App. 294, 116 S.E.2d 105 (1960)
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Judgment affirmed. Gardner, P. J., Carlisle and Frankum, JJ., concur.
Summary
Judgment affirmed. Gardner, P. J., Carlisle and Frankum, JJ., concur.
Text
The defendant in error, Porterfield, filed an action for damages in the Superior Court of Oglethorpe County against Leroy Collins for personal injuries growing out of an automobile collision allegedly the result of Collins' negligence. The trial resulted in a verdict of $15,000 for the plaintiff. The defendant's motion for new trial as amended was denied, and he brings error.
1. The excerpt from the charge complained of in special ground 4 is controlled adversely to the movant by the ruling in Andrews Taxi &c. Co. v. McEver,
2. Special ground 5 complains of a lengthy excerpt from the charge which sets out first the eight alleged acts of negligence of the defendant as stated in the plaintiff's petition, then quotes the pertinent provisions of Code Ann. 68-1626 relating to general speed restrictions applying to five of the allegations of negligence which are charged as negligence per se, and then concludes with the following words: "Whenever an alleged act of negligence is not a violation of the statute it may be claimed to be negligence as a matter of fact, and whether in any particular case an act claimed to be negligence as a matter of fact is involved is a question for the jury to determine whether under the facts and circumstances such act or acts constitute negligence as a matter of fact."
(a) The fact that the court in a portion of the charge erroneously referred to Code Ann. 68-1626 as Code Ann. 68-1623, which deals with accident reports and was a matter not in issue and not placed before the jury, was not such an error as to prejudice either party. The contents of section 68-1626 were correctly charged, and the number of the section, whether right or wrong, meant nothing whatever to the jury.
(b) "Though it is better for him not to do so, it is not usually cause for a new trial that the judge gives in charge to the jury an entire statutory or Code provision, a part of which is applicable and a part inapplicable to the case under consideration. Thompson v. Mitchell,
(c) The court did not, as contended, submit to the jury as infractions of statute those allegations of negligence charged only as negligence as a matter of fact, and which included failing to turn the plaintiff's vehicle to avoid a collision, failing to stop the vehicle to avoid a collision, and failing to reduce speed as he approached the plaintiff. The court did charge that portion of Code Ann. 68-1626 as follows: "In every event speed shall be so controlled as may be necessary to avoid colliding with any person, vehicle or other conveyance on or entering the highway," which was proper in that the petition charged negligence per se "in failing to slow speed of his vehicle to avoid colliding with petitioner."
(d) Nor was the instruction error as being unduly repetitive of the subject matter.
3. (a) Special ground 7 assigns as error a lengthy excerpt from the charge relating to damages, being all of the instructions on that subject. The contention that the instructions were abstractly incorrect and unsound will not be considered where most of the excerpt is obviously correct and is not attacked in any manner showing that it is incorrect as a whole. Grace v. Martin,
5. It is contended in special ground 9 that the verdict is so grossly excessive as to demand a finding that it was the result of undue bias and prejudice on the part of the jury. The verdict in the sum of $15,000 upon a petition alleging damages in the sum of $100,000 was based in part on evidence of the plaintiff, a 37-year-old experimental worker with the United States Forestry Service, that as he rounded a curve the defendant approached him, speeding and on the wrong side of the road, and ran head-on into him; that he was taken to the hospital, and was unconscious for a period of several hours immediately following the impact, that he was cut across his left eye, his tongue was cut two-thirds of the way across, a hole knocked under his chin, a broken rib, crushed chest, and holes in his right and left knees, his upper front teeth dislocated, and his back injured; that he had continuous pressure pain, quite severe and requiring drugs for alleviation, that in the two and one-half years between the collision and the trial his tongue has caused continuous irritation "as if something is frying on it" and has remained sore and that he has continuous pain in his back from which he is never free. His physician testified that the plaintiff suffered a compression chest injury and broken rib; that it has resulted in osteo arthritis; that he also has a painful effect on his tongue which has become a site of chronic irritation caused by disturbance of the nerve supply, which is permanent in nature and produces pain; that he has sustained a back injury resulting in a permanent disability to his back of at least 30%, and that his continuing pain and suffering are evidenced not only by his subjective reactions but by loss of weight from 152 to 140 pounds.
While the evidence for the defendant indicated that the plaintiff sustained only minor contusions and presently shows no objective symptoms indicating permanent disability, and while the defendant undoubtedly believes that the verdict is excessive, based upon his own estimate of the plaintiff's damages, the plaintiff's evidence and not that of the defendant must be looked to in determining the issue of whether it is excessive as a matter of law; so considered, it is obviously well supported by evidence, much less than the amount for which the action was brought, and not excessive as compensation for the injury which the jury was authorized to find the plaintiff had received.
The trial court did not err in denying the motion for new trial.
George B. Brooks, Marshall L. Allison, for plaintiff in error.
1960
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