Holland v. Tootle
Holland v. Tootle
Opinion of the Court
The appellant filed a claim against the appellees for damages which resulted from a collision between the appellant’s automobile and one driven by appellee, Jane Tootle, and owned by her father Dr. Tootle.
The evidence was in conflict as to the circumstances under which the collision took place. The plaintiff testified: that the defendant, Jane Tootle, was driving between 60 and 70 miles per hour on a rainy, slick, narrow highway; that she lost control, fishtailed back and forth from the left shoulder to the right; that the automobile she was driving collided with the plaintiff’s vehicle which was parked completely off the paved portion of the highway.
The jury returned a verdict for the defendants and an appeal was taken. Held:
1. Enumeration of error number 1 contends the trial judge erred in his instruction to the jury in regard to the preponderance of the evidence. The judge charged in part: ". . . if the jury is in doubt as to where the preponderance of evidence rested, the doubt should be solved in favor of the side that does not have to preponderate in the evidence.” This charge was approved in Richards v. Harpe, 42 Ga. App. 123, 126 (155 SE 85).
2. The plaintiff argues that the trial judge should not have charged the jury that the burden was upon the plaintiff to prove that the skidding of the automobile driven by Jane Tootle was due to the negligent operation of the automobile. The charge was not error. "Plaintiff testified that as she approached the curve she took her foot from the accelerator, allowing the car to slow down and that it did slow down to some extent, but that when it hit the asphalt topping through which tar was bleeding it 'fishtailed’ causing her to lose control, and that she 'didn’t have time to do anything’ before the collision occurred. 'It is common knowledge that a skidding automobile is very
3. The seventh enumeration of error complains that the trial judge erred in failing to allow counsel for the plaintiff to question Jane Tootle as to what speed she would consider safe under the conditions that were present at the time of the collision. This ruling was harmless because plaintiff’s counsel read to the jury the same question and the answer she had given in answer to the plaintiff’s interrogatory.
4. The evidence though in conflict was sufficient to support the verdict.
5. The remaining enumerations of error are without merit.
Judgment affirmed.
Concurring Opinion
concurring specially. I concur specially in the judgment affirming the lower court, and do so reluctantly, because I feel there was error in the charge to the jury, but that under the very strict and stringent rules imposed by this court respecting such matters, appellant did not properly complain thereof. In
However, examination of the transcript discloses that the plaintiff objected to the entire charge on skidding including the correct charge that "an automobile may skid on a slippery highway without any negligence on the part of the operator.” It was the defendant’s contention that this caused her to skid, and this charge was proper.
Under the authorities cited in the majority opinion, the charge that an automobile may skid on a slippery highway without negligence on the part of the operator was authorized, but the court went further and placed upon the plaintiff the burden of proving such skidding was because of defendant’s negligence, thus giving the jury the impression there could be no recovery by plaintiff unless he proved that defendant skidded because of negligence.
This court has held that in order to properly complain of a charge of the court, appellant’s counsel must be very, very specific in his objections, and strictly comply with § 17 of the Appellate Practice Act of 1965, as amended (Code Ann. § 70-207; Ga. L. 1965, pp. 18, 31; 1966, pp. 493, 498; 1968, pp. 1072, 1078), even to the extent of advising the court what language should have been charged to the jury. Ga. Power Co. v. Maddox, 113 Ga. App. 642 (149 SE2d 393). The writer set forth his objections to these stringent and almost-impossible rules in a dissenting opinion in the case of Black v. Aultman, 120 Ga. App. 826, 834 (172 SE2d 336). Nevertheless, I am bound by the combined wisdom and votes of my brethren on this court in these matters. Here the appellant
Reference
- Full Case Name
- HOLLAND v. TOOTLE Et Al.
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- 4 cases
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- Published