Davis v. Southland Auto Salvage, Inc.

Full title: DAVIS et al. v. SOUTHLAND AUTO SALVAGE, INC. et al

Court: Court of Appeals of Georgia

Date published: Apr 6, 1976

226 S.E.2d 749 (Ga. Ct. App. 1976)

226 S.E.2d 749

Opinion

51833.

ARGUED FEBRUARY 2, 1976.

DECIDED APRIL 6, 1976. REHEARING DENIED MAY 10, 1976.

Action for damages. Lowndes Superior Court. Before Judge Calhoun.

Jack J. Helms, for appellants.

Young, Young Ellerbee, O. Wayne Ellerbee, for appellees.

BELL, Chief Judge.

This is a personal injury and property damage suit arising out of a motor vehicle collision. A jury returned a verdict for the defendants and plaintiffs appeal. Held:

1. Plaintiffs urge that the trial judge erred in failing to give the following requested charge: "An automobile driver on the highway has the right to assume that others driving cars, vehicles, would observe the rules prescribed by laws respecting lights upon the rear of their vehicle." This charge is taken from Bach v. Bragg Bros. Blackwell, Inc., 53 Ga. App. 574 (2) ( 186 S.E. 711). The main issue was whether the defendant's truck which was parked at the time of collision was lighted in compliance with former Code Ann. § 68-1710 (b). The trial court properly charged the jury on the duty imposed by this statute and on negligence per se. Therefore, even if it was error to fail to charge as requested (which we do not decide), that failure was at best harmless error.

2. Photographs relating to the scene of the accident which were taken sometime after the accident were admitted over the objection that the truck portrayed in the picture was not loaded as it was at the time of the collision and there was no evidence that it was parked in the identical location. The trial court has discretion to admit or exclude photographs, even when there is admittedly some difference in the situation portrayed and that which existed and this discretion will not be controlled unless abused. Grasham v. Southern R. Co., 111 Ga. App. 158, 161 ( 141 S.E.2d 189). No abuse of discretion has been shown.

3. The plaintiffs allege error in the court's charge on contributory and comparative negligence to which no exception was taken at trial. This presents nothing for consideration on review. Code Ann. § 70-207 (a).

Judgment affirmed. Clark and Stolz, JJ., concur.

ARGUED FEBRUARY 2, 1976 — DECIDED APRIL 6, 1976 — REHEARING DENIED MAY 10, 1976 — CERT. APPLIED FOR.