Opinion
38974.
DECIDED SEPTEMBER 6, 1961.
Action for damages. Cobb Superior Court. Before Judge Henderson.
Miles B. Sams, for plaintiff in error.
Greer, Morris, Bartholomew Finley, Richard G. Greer, contra.
1. The general grounds of the motion for a new trial are without merit.
2. A request to charge the jury must be entirely correct and accurate; it must be adjusted to the pleadings and the evidence in the case. Where, as here, a portion of the requested instructions is inappropriate, the omission to give that portion which was appropriate affords no ground for reversal.
DECIDED SEPTEMBER 6, 1961.
Harold L. King filed an action against James B. Ellis to recover damages to his automobile and for loss of its use resulting from a collision with the defendant's automobile on March 3, 1960, on South Cobb Drive in Cobb County, Georgia, at about 6:15 a. m. According to the allegations, the road was icy and slick at this time and place, and as the plaintiff approached the intersection of South Cobb Drive and Cherokee and Jones Shaw Roads his automobile skidded partially off the road when he attempted to stop to avoid hitting a car which had stopped ahead of him. The defendant was following the plaintiff's automobile at a distance of approximately seventy-five feet and a speed of about twenty-five miles per hour, according to his own estimation. He saw the plaintiff stop, but skidded on the icy pavement and struck the left rear of the plaintiff's automobile, for which the plaintiff sued, praying for two hundred sixty-seven ($267) dollars actual damages and two hundred seventy ($270) dollars special damages. The defendant filed an answer and cross-petition in which he alleged that the plaintiff had created a hazard and sudden emergency by his sudden application of his brakes without any warning, and his automobile's skidding and turning out of control, for which the defendant prayed for damages to his own automobile.
The jury found for the defendant. The plaintiff, King, filed a motion for new trial on the general grounds and a special ground which assigns error on the court's refusal to charge a timely written request.
1. The evidence adduced at the trial is ample to support the verdict and judgment. The general grounds are without merit.
2. Special ground 4 of the plaintiff's motion for new trial assigns error on the court's failure to charge three propositions which were tendered to the court by a timely, written request. Paragraph 2 of the requested charge was as follows: "If the highway is wet and slippery by reason of falling rain and the condition of the highway is such that driving a vehicle at a certain speed is likely to cause such vehicle to skid upon the application of its brakes and crash into cars moving in the opposite direction, that such rate of speed would be unlawful." (Italics ours). The pleadings and the evidence show that there was ice on the pavement, not "falling rain," as the plaintiff's request stated, and also that the automobiles were moving in the same direction, rather than "in the opposite direction." "A request to charge the jury, directed to the trial judge, submitted in writing before the retirement of the jury, must be entirely correct and accurate; it must be adjusted to the pleadings, the law, and the evidence in the case; it must not be argumentative; and it must not seek an expression of opinion on the part of the trial judge." New York Life Ins. Co. v. Thompson, 50 Ga. App. 413 (1) ( 178 S.E. 389); McKinney v. Woodard, 94 Ga. App. 340 (1) ( 94 S.E.2d 620); Childers v. Ackerman Const. Co., 211 Ga. 350 (1) ( 86 S.E.2d 227). The request was not adjusted to the pleadings and the evidence in the case, as shown above, hence the refusal to charge the requested proposition was not error. Whether or not the other two paragraphs of the requested charge are correct and applicable is immaterial. "Where a series of propositions are presented in bloc in a single request to charge, the court is not required to give them or any part of them, if any one of them is erroneous or inapplicable to the case on trial." Western Union Tel. Co. v. Owens, 23 Ga. App. 169 (5) ( 98 S.E. 116); Mayor c. of Savannah v. Centennial Mill Co., 46 Ga. App. 725 (1) ( 169 S.E. 40); Shippey Bros. White v. Owens, 17 Ga. App. 127 (3), 130 ( 86 S.E. 407); Davis v. Guffey, 196 Ga. 816, 818 ( 27 S.E.2d 689); Thompson v. O'Connor, 115 Ga. 120 (5), 123 ( 41 S.E. 242).
The request to charge not being entirely correct and the general grounds being without merit, the court did not err in its judgment denying the plaintiff's motion for new trial.
Judgment affirmed. Bell and Hall, JJ., concur.