Crafton v. Livingston., 114 Ga. App. 161, 150 S.E.2d 371 (1966)

Georgia Court Of Appeals

Status: ARGUED

Docket Number: 42059

Parts: HALL, Judge.

Linked as:

Summary

Judgment reversed for the reasons stated in Divisions 2 and 3. Nichols, P. J., and Deen, J., concur.

Summary

Judgment reversed for the reasons stated in Divisions 2 and 3. Nichols, P. J., and Deen, J., concur.

Text

Nelson & Nelson, Carl K. Nelson, Jr., for appellant.

The defendant in this negligence action appeals from a judgment for the plaintiff and enumerates as error orders overruling his demurrers to the plaintiff's petition and overruling his motion for new trial.

2. The defensive pleadings made the issue that the plaintiff failed to exercise ordinary care by knowingly endangering himself, and that the plaintiff by the exercise of ordinary care could have avoided the consequences of the defendant's negligence. The court charged the jury on these issues but refused the defendant's request to charge on comparative negligence. Since the evidence created issues on the defenses that the plaintiff failed to exercise ordinary care, the trial court erred in refusing upon request to charge the jury on the application of the comparative negligence rule. Code Ann. 70-207; Southern Express Co. v. Hughes, 105 Ga. App. 70, 74 (123 SE2d 693); Green, Georgia Law of Evidence 607, 310, 311.

4. The trial court did not err in admitting testimony of a witness, who had in his employment for 8 years read the water meter at which the plaintiff was working when he was injured, that in reading the meter he had never used any signs or safety measures, over the defendant's objection that what safety measures some particular person used was irrelevant and immaterial. Accord, Auld v. Southern R. Co., 108 Ga. App. 718, 721 (134 SE2d 531).

6. The trial court did not err in admitting evidence, over the objection that it was hearsay, of a statement made in the presence of both the plaintiff and the defendant by another person at the scene when the plaintiff was injured. Griffin v. Cleghorn, Herring & Co., 63 Ga. 384; Kryder v. State, 57 Ga. App. 200, 203 (194 SE 890).

Enumerations of error in overruling grounds 6 through 15 and 17 of the motion for new trial are without merit. Moreover, most of the errors alleged in these enumerations should not occur when the case is retried under the Appellate Practice Act of 1965 (Ga. L. 1965, pp. 18, 31, as amended by Ga. L. 1966, p. 493).

Beverly B. Hayes, E. L. Stephens, Jr., for appellee.

1966