Barlow v. Story

Hall, Judge.

The plaintiff filed an action for property damages and personal injuries against the owner and driver of an automobile, husband and wife, allegedly caused by the negligent driving of the wife resulting in a collision at an intersection. The defendants filed cross actions for damages for personal injury and loss of services, alleging the collision was caused by the negligence of the plaintiff. The defendants appeal from a judgment of the Houston Superior Court overruling their petition for certiorari and sustaining the judgment of the State Court of Houston County adverse to them.

1. The instruction to the jury complained of in enumeration of error No. 1 was not erroneous and injurious, as the plaintiffs contend, in that it told the jury that the burden was on the defendants to prove all of their allegations of negligence before they could recover. This instruction is not the same as those held to be error in Everett v. Clegg, 213 Ga. 168, 171 (97 SE2d 689), and Butler v. Kane, 96 Ga. App. 521, 523 (100 SE2d 598), and is not controlled by those cases. The court in the present case correctly charged that the defendants were entitled to recover if they proved any one or more of the grounds of negligence alleged in their cross actions.

2. The court did not err in failing to charge the defendants’ written request to charge on emergency, since the request was not adjusted to the evidence.

3. The court did not err in charging an ordinance of the City of Warner Robins restricting speed at intersections to 15 miles per hour “except on boulevards.” The ordinance was pleaded and introduced in evidence. There was no evidence that the street on which the defendant was driving was or was not a boulevard. If the ordinance was inapplicable for the reason that the street was a boulevard, the defendant should have introduced evidence of this fact. Generally, “A person claiming the benefit of the exception must establish that he comes within it.” 82 CJS 893, § 382. The evidence authorized the charge respecting violation of the ordinance.

Argued February 5, 1969 Decided June 13, 1969 Rehearing denied July 7, 1969 Neal D. McKenney, for appellants. Jones, Cork, Miller & Benton, Wallace Miller, Jr., for appellee.

4. The enumeration of error on the form of the verdict is not a ground for reversal. The verdict was supported by the evidence. The defendants did not object after the court’s charge, or at the time the court answered a question asked by the jury, to the instructions on the form of the verdict, and did not request other or further instructions on this point. The defendants made no motion or objection'to the verdict-at the time it was rendered.

Judgment affirmed.

Jordan, P. J., concurs. Whitman, J., concurs specially.