Opinion
40539.
DECIDED JANUARY 28, 1964.
Action for damages. Clarke Superior Court. Before Judge Barrow.
Jim Hudson, for plaintiff in error.
Telford, Wayne Greer, Jeff C. Wayne, Dent Bostick, Tifton S. Greer, contra.
A charge in which the contentions of the defendant are erroneously stated requires the grant of a new trial.
DECIDED JANUARY 28, 1964.
Vernon Farr sued M. W. H. Collins, Jr. for damages arising out of personal injuries when he, a pedestrian, was struck by defendant's vehicle on the public highway. Several acts of negligence were charged against the defendant. In his answer, after denying all acts of negligence charged against him, defendant further asserted that "whatever injuries and damages have been suffered by plaintiff as a result of being struck on the highway on the occasion alleged resulted from plaintiff's own failure to exercise ordinary care for his own safety in walking in the lane of traffic on said highway at said time and place and circumstances."
In charging the jury the court instructed, inter alia: "The defendant contends that the plaintiff's negligence was equal to or greater than any negligence charged against the defendant," and "the defendant further contends that even if there was negligence on the part of the defendant creating some liability of the defendant, that there was some negligence on the part of the plaintiff that requires a reduction in the amount of the plaintiff's damages."
After a verdict for the plaintiff defendant moved for a new trial adding nine special grounds by amendment.
Error is assigned in special grounds 4 and 5 of the amended motion upon these quoted portions of the charge upon the ground that they do not correctly state the defendant's contention as set forth in the answer, viz., that he was wholly free from all fault and that plaintiff's injuries and damages resulted from his own failure to exercise ordinary care for his own safety.
To an order granting a new trial upon these and seven other special grounds (but not upon the general grounds) plaintiff below (plaintiff in error here) assigns error, urging that none of the special grounds were meritorious.
1. We must agree with the trial judge that as to special grounds 4 and 5 of the amended motion error requiring a new trial is shown. Nowhere in his answer, nor does it appear elsewhere in the record, did the defendant contend that there was any negligence on his part. Rather, his contention was to the contrary. He clearly and explicitly denied all acts of negligence charged against him and then asserted that plaintiff's injuries resulted from his own failure to exercise ordinary care for his own safety — or, to state it differently, from his own negligence. This we regard as a material misstatement of the defendant's contentions. Obviously the jury may very well have concluded from these portions of the charge that the defendant conceded or admitted some negligence on his part when he did no such thing, and this may have influenced the jury in returning an adverse verdict. "Where the court, in charging the jury as to the respective contentions of the parties, not only failed to correctly present those of the losing party, but practically instructed the jury that he admitted the contention of the opposite party concerning one of the vital issues in the case, a new trial is demanded." Hightower v. Ansley, 126 Ga. 8 (6) ( 54 S.E. 939, 7 AC 927); City of Decatur v. Robertson, 85 Ga. App. 747, 749 ( 70 S.E.2d 135). "The defendant was entitled to have the case tried upon the defenses which it elected to assert, and should not have been placed in the attitude of making a further issue. . . The fact that the defendant was thus placed in a false and losing position as to one issue tended to discredit its position as to other issues, and might have been the deciding factor in the deliberations of the jury." First Nat. Bank v. Langston, 44 Ga. App. 465, 467 ( 161 S.E. 637); McJenkins Ins. c. Co. v. Thompson, 79 Ga. App. 473, 475 ( 54 S.E.2d 336).
The defense pleaded "contributory negligence" as contained in the first portion of Code § 105-603 rather than the "comparative negligence" rules set out in the last portion of that Code section. See the discussion in Judge Hall's special concurrence at pages 441-442 in Kreiss v. Allatoona Landing, Inc., 108 Ga. App. 427 ( 133 S.E.2d 602); also Hilkey, Actions for Wrongful Death in Georgia, 22 GBJ 459, at pp. 461, 462; Hilkey, Comparative Negligence in Georgia, 8 GBJ 51.
If these portions of the charge had been given as legal principles, and not as contentions of the defendant a different conclusion would be reached under the facts proven. There was some evidence from which the jury might have concluded that the defendant was to some degree or in some respect negligent.
2. We have carefully examined the remaining seven special grounds of the amended motion but find them all to have been without merit.
Judgment affirmed. Bell, P. J., and Jordan, J., concur.