Ready-Mix Concrete Co. v. Rape

Nichols, Judge,

concurring specially. Special ground numbered 10 of the amended motion for new trial complains of the *520exclusion of evidence offered by the defendant to the effect that -the “Public Works Camp” located approximately three miles from Rome and five miles from the, defendant’s quarry by road, less by air, had blasted during substantially the same period of time that the defendant had (the period of time during which the defendant had allegedly damaged the plaintiff’s house). The defendant was seeking to show that others, besides itself, had been blasting during the period when the plaintiff’s house was allegedly damaged so as to, presumably, raise an issue for the jury as to which blasting caused the alleged damage.

“It has long been the rule in this State that where the relevancy or competency of evidence is doubtful, it should be admitted and its weight left to the determination of the jury. Dalton v. Drake, 75 Ga. 115; Talbotton Railroad Co. v. Gibson, 106 Ga. 229, 236 (32 S. E. 151); Nugent v. Watkins, 129 Ga. 382, 385 (58 S. E. 888); Crozier v. Goldman, 153 Ga. 162, 165 (111 S. E. 666); Purser v. McNair, 153 Ga. 405 (112 S. E. 648); Central of Georgia Ry. Co. v. Keating, 177 Ga. 345, 352 (170 S. E. 493); Fitzgerald v. Vaughn, 189 Ga. 707, 709 (7 S. E. 2d 78).” Lovejoy v. Tidwell, 212 Ga. 750, 751 (95 S. E. 2d 784).

The trial court in excluding the evidence ruled that the location of the blasts was in an area too remote to be of any value to the jury.

The intensity of the blasts at the “Public Works Camp” was. not shown, nor was its distance from the plaintiff’s house, although it was shown that the blasting at the “Public Works Camp” was done during the same period of time as that sued for, and that, while it was -not done each day, the days on which blasting was done it was done at approximately the same time of day as that done by the defendant.

The evidence was competent evidence and it was error for the trial court to exclude it on motion of the plaintiff.

The next question presented is whether the exclusion of the evidence was harmful to the defendant. To be harmful error the excluded evidence must be shown to be such as would have benefited the defendant. Allen v. Kessler, 120 Ga. 319 (47 S. E. 900); York v. State, 42 Ga. App. 453 (5) (156 S. E. 733). “Errors in admission or exclusion of evidence which would in no *521event alter or affect the outcome of the case are harmless and do not require reversal.” Owens v. Service Fire Ins. Co. of N. Y., 90 Ga. App. 553 (3) (83 S. E. 2d 249).

As has been stated above the intensity of the blasts at the “Public Works Camp” was not shown, nor was the distance of such camp- from the plaintiff’s house. Without this information, once the jury arrived at the conclusion, during its consideration of the case, that the damage to the plaintiff’s house was caused by blasting, it could not be determined that the damage was contributed to by the blasting done at the “Public Works Camp,” much less that it was the sole proximate cause of the plaintiff’s damage.

Accordingly, while error is shown by this special ground of the amended motion for new trial, harmful error is not shown so as to cause a reversal of the judgment of the trial court.

Had the defendant sought to prove the. distance from the “Public Works Camp” to the plaintiff’s house and the intensity of the blasts used at the “Public Works Camp,” then the jury would have had evidence from which-it could determine whether the blasts from the “Public Works Camp” were the sole proximate cause of the damages, but without such information the jury could not have determined whether such blasting was the sole proximate cause of the plaintiff’s damages, and the excluded evidence could not have benefited the defendant.