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Action for damages. Louisville City Court. Before Judge Cannon.
FELTON, Chief Judge.
1. Under the facts of this case, the trial judge did not commit error harmful to the defendant in omitting to charge the jury that in determining where the preponderance of the evidence lies they should take into consideration the nature of the facts to which the witnesses testified.
2. The charge as a whole gave the jury adequate instructions as to the principle of proximate cause.
Homer E Clark sued the City of Louisville for damages for personal injuries and damages to his automobile allegedly caused by the city's negligence in improperly placing an obscurely marked barricade in such a location that he was not given adequate warning, and was thereby forced to swerve, causing him to hit a large hole, negligently allowed by the defendant to remain in the street, and overturn. The city answered by a general denial of the allegations of the petition as amended. Upon the trial of the case before a jury the plaintiff presented evidence in proof of the allegations of his petition, including the amounts of his damages. The defendant city presented evidence in the form of the testimony of one of its policemen, who had been on the force approximately seven years and had supervised the placing of such barricades, to the effect that the barricade had been properly placed and plainly marked and that the alleged hole consisted only of a rough or scarred place in the pavement. A Georgia Power Company employee testified that the large hole had been in the street for several months and that on the day of the occurrence he had seen several automobiles almost hit the barricade. The plaintiff and the policeman both testified, without objection, that a subsequent barricade was erected by the Highway Department further down the road, giving more advance warning. The plaintiff's wife testified, also without objection, that the hole was filled after the accident. The defendant city's chief of police testified that he had had two conversations with the plaintiff in the hospital right after the accident in which he had admitted, in effect, that the accident was due to his excessive speed and inattention. In rebuttal, the plaintiff testified that although he could not remember what was said in the first conversation, he made no such admissions in the second one and denied that he would have made such admissions.
There was a verdict and judgment for the plaintiff. The defendant filed a motion for a new trial on the three usual general grounds, later amending it by adding three special grounds. The court overruled the motion as amended, to which judgment the defendant excepts.
1. Special ground 1 complains of the trial judge's omission of the phrase, "the nature of the facts to which they testified," from his unrequested charge in the substantial language of Code 38-107, i.e., as to the factors the jury may consider in determining where the preponderance of evidence lies.
"While both the Supreme Court and this court have held that the better practice in charging on this Code section is to instruct the jury with respect to all of the elements set forth in the Code section, nevertheless, it is not the intention of this rule as announced by the courts that the judge should in every instance charge the entire section. Fountain v. McCallum, 194 Ga. 269, 276 (21 SE2d 610). It is not always error to omit from the charge some of the elements of this Code section. Palmer-Murphey Co. v. Barnett, 32 Ga. App. 635 (6) (124 SE 538); George v. McCurdy, 42 Ga. App. 614 (2) (157 SE 219); Travelers Indemnity Co. v. Paramount Publix Corp., 52 Ga. App. 239 (2) (182 SE 923); Cedrone v. Beck, 74 Ga. App. 488 (1) (40 SE2d 388). Each case must rest on its own facts." Yellow Cab Co. v. McCullers, 98 Ga. App. 601 (106 SE2d 535). This court has held specifically that omission of the phrase "the nature of the facts to which they testified" in charging this Code section is not necessarily reversible error in the Yellow Cab Co. case, supra, as well as in the case of Southern R. System v. Yancey, 102 Ga. App. 159, 161 (3) (115 SE2d 693), in which it is pointed out that "[t]he trial jurors are selected for their intelligence and uprightness and would hardly need to be told that, in weighing the evidence, they should take into consideration the nature of the facts to which the witnesses had testified." Another reason such omission will not necessarily require the grant of a new trial is given in Travelers Ins. Co. v. Anderson, 53 Ga. App. 1 (1) (184 SE 813): "The provisions of the Code of 1933, 38-107, as to matters to be considered by the jury in determining where the preponderance of the evidence lies in a civil case, not relating to a 'substantial, vital, and controlling issue presented by the pleadings and evidence' (Rome R. &c. v. King, 33 Ga. App. 383, 126 SE 294) in any case, but relating only to a matter merely incidental and collateral to the main issues (Smith v. Page, 72 Ga. 539), are not such as that a failure of the court to charge concerning it, in the absence of a timely written request, will require the grant of a new trial. Askew v. Amos, 147 Ga. 613 (5) (95 SE 5), and cit.; Robinson v. State, 114 Ga. 445 (40 SE 253), and cit."
In the Atlantic C. L. R. Co. case, supra, the term "proximate cause" was not even used. The portions of the charge in the present case, quoted hereinabove, were an adequate instruction on the principle of proximate cause; therefore, the court did not err in overruling the special grounds 2 and 3.
The general grounds of the motion were expressly abandoned and hence are not considered; none of the special grounds was meritorious. There was, therefore, no error in refusing to grant a new trial.
Judgment affirmed. Eberhardt and Russell, JJ., concur.
Marshall L. Fountain, contra.
Abbot & Abbot, James C. Abbot, for plaintiff in error.
Friday May 22 22:10 EDT

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