Dufour v. Martin

117 Ga. App. 160 (1968) 159 S.E.2d 450

DuFOUR, by Next Friend
v.
MARTIN et al.

43384.

Court of Appeals of Georgia.

Submitted January 12, 1968. Decided January 30, 1968.

Albert E. Butler, for appellant.

Thomas & Howard, Joseph H. Thomas, Hubert Howard, for appellees.

HALL, Judge.

The plaintiff appeals from a judgment entered upon a verdict of the jury in favor of the defendants.

1. The plaintiff argues that, since the defendants' answer alleged in defense that the plaintiff was barred from recovery because he rode his bicycle into the defendants' automobile while wearing a mask which impaired his vision, in disregard for his own safety, and the defendants did not affirmatively allege that the defendant driver slowed down and kept a vigilant lookout as she approached the place where the collision occurred, the defense was subject to general demurrer. The cases relied on by the plaintiff do not support this contention. The defendants' answer denied the plaintiff's allegations of negligence, including failure to slow down and to keep a proper lookout for persons who might be expected to cross the street. Generally a party in a negligence action is not required to allege his own exercise of care. Great Cosmopolitan Shows v. Petty, 7 Ga. App. 236, 237 (66 S.E. 624); Parker v. Johnson, 97 Ga. App. 261, 262 (102 SE2d 917). The trial court did not err in overruling the plaintiff's general demurrer to the defendants' answer.

2. The evidence was sufficient to support the verdict for the defendants. Questions of negligence of the defendant and negligence of the plaintiff that might prohibit or reduce the amount of plaintiff's recovery of damages were matters within the province of the jury. Phillips v. Blanton, 116 Ga. App. 743 (159 SE2d 187); Chambliss v. Felder, 116 Ga. App. 80 (156 SE2d 374). The trial court did not err in overruling the plaintiff's motions for directed verdict, for judgment notwithstanding the verdict, and for a new trial.

3. The trial court did not err as contended by the plaintiff in instructions given to the jury and refusal to give requests to charge, since the plaintiff did not before the verdict make objections distinctly stating the grounds of his objections. Appellate Practice Act of 1965 (Ga. L. 1965, pp. 18, 31; Code Ann. § 70-207); Georgia Power Co. v. Maddox, 113 Ga. App. 642 (149 SE2d 393); United States Security Warehouse v. Tasty Sandwich Co., 115 Ga. App. 764 (156 SE2d 392).

Judgment affirmed. Bell, P. J., and Quillian, J., concur.