Evans v. Batchelor

Evans, Judge,

dissenting.

1. Enumeration of error No. 1 shows reversible error by the trial court. He excluded from evidence testimony by plaintiff that defendant stated to her after the collision: "Í am sorry this happened. I have insurance. I don’t want you to worry about it. It will take care of everything. I didn’t see you.” (T. 4). This testimony was not offered as a part of the res gestae but as an admission by the defendant against interest. The statement was made one or two days after the injuries had occurred.

An admission against interest is admissible and need not be a part of the res gestae. The jury was certainly entitled to know that defendant admitted he did not even see plaintiff, and to determine whether any proper explanation of his failure was made, especially in view of the law which requires the driver of an automobile at all times to maintain a vigilant lookout ahead for others lawfully on the highway. See Williams v. Vinson, 104 Ga. App. 886, 889 (123 SE2d 281); Leggett v. Brewton, 104 Ga. App. 580 (3) (122 SE2d 469). As to the admissibility of admissions against interest, see Code § 38-403. Defendant told plaintiff not to worry because his insurance would take care of everything. But his insurance company would not take care of everything or anything unless defendant was at fault. What, then, was this but an admission against interest? See Wade v. Drinkard, 76 Ga. App. 159 (5) (a) (45 SE 231), where the admission against interest was not admitted simply as part of res gestae, but as "an *632admission against interest.”

2. The trial judge committed reversible error in allowing a lay witness, one Howard Smith, to invade the province of the jury by testifying that the speed of defendant’s car "was not excessive.” He did not know how fast the car was going, it could have been 50, 55, or 60, but "it was not excessive.” He so testified several times over objection of plaintiff. (T. 90-94.) This is clearly erroneous. It is the function of the witness, if he can, to tell how fast the car was going, and it is the sole and exclusive function of the jury to determine whether that particular speed was "excessive.” The witness could just as well have testified which one was negligent and which one was not, and actually that is what the witness did, when he was allowed to testify that the speed "was not excessive.” What was left for the jury to determine after such inadmissible evidence was permitted to be introduced? This type of testimony is plainly condemned in Tittle v. McCombs, 129 Ga. App. 148, 149 (4, 5) (199 SE2d 363), and it is shown that same invaded the province of and answered questions that only the jury was allowed to resolve and answer. Also, see Alabama Great Southern R. Co. v. Brown, 140 Ga. 792 (3), 797 (79 SE 1113); Holloway v. Mayor &c. of Milledgeville, 35 Ga. App. 87, 88 (9) (132 SE 106).

3. The trial court erred in refusing to give in charge to the jury plaintiffs written request which was in effect that the law of the road does not restrict a pedestrian to any particular part of a highway or street; he may cross at any place he desires if he uses due care; and the operator of automobiles must anticipate the possibility that pedestrians may cross the highway at any point. This was a correct statement of the law and it was error to refuse to charge it: Claxton v. Hooks, 68 Ga. App. 383, 385 (23 SE2d 101); Lorig v. Brunson, 84 Ga. App. 558 (66 SE2d 268); Whiteway Laundry v. Childs, 126 Ga. App. 617, 620 (10) (191 SE2d 454). This was not covered in substance elsewhere in the charge, although the court charged that both pedestrian and the driver of an automobile have the right to use the highway (T. 139, 140).

4. The trial court committed reversible error in failing to give in charge to the jury a written request by *633plaintiff to the effect that the driver of a car must use reasonable care to anticipate the presence on the streets of other persons having equal rights with himself to be there; and that a pedestrian, while lawfully using the highway, is not bound to be continually looking and listening to ascertain if auto cars are approaching, under penalty, if she fails, that the pedestrian is presumed negligent. The first part of the request was given but the latter part was omitted and was not covered in the general charge. This request was in accordance with the law of this state: Christian v. Smith, 78 Ga. App. 603, 607 (5) (51 SE2d 857); Huckabee v. Grace, 48 Ga. App. 621, 622 (11) (12) (173 SE 744). Also see Lorig and Claxton, supra.

5. The trial court committed reversible error in failing to charge a written request, the important part of which contained this language: ". . . ordinary diligence requires that the driver of an automobile be constantly on the lookout and that he have his machine in such condition as that it shall be under his perfect control.” It will be remembered that in enumeration of error No. 1, it is shown that the driver admitted to plaintiff (which evidence was improperly rejected and excluded) that the driver did not even see plaintiff. O’Dowd v. Newnham, 13 Ga. App. 220 (80 SE 36); Sapp v. Shumate, 81 Ga. App. 432 (59 SE2d 8). In determining whether a driver is exercising ordinary diligence, the jury may consider his inattention. Huckabee v. Grace, 48 Ga. App. 622 (11), supra; Cagle v. Atchley, 127 Ga. App. 668 (6), 675 (194 SE2d 598).

Because of each of these enumerations, this case should be reversed and a new trial granted to plaintiff.

I am authorized to state that Presiding Judge Pannell and Judge Quillian concur in Divisions 1 and 2 of the dissent and therefore concur in the dissent.