State Construction Co. v. Johnson , 88 Ga. App. 651 ( 1953 )

Worrill, J.,

dissenting. I dissent from the rulings of the majority of the court in the 2nd and 3rd divisions of the opinion and from the judgment of reversal. While I recognize the principle that pertinent and legal requests to charge on a material issue should be given in the language requested, this rule has no application where the charge as given substantially covers the language of the request. I think that the charge as given substantially covered the request in this case, and that the failure to instruct the jury that the duty of the plaintiff to exercise ordinary care to avoid the negligence of the defendant did not arise until the defendant’s negligence was known to him or should have been apparent to him, if error, was certainly not harmful to the defendant and was not error of which the defendant can complain.

As to the instruction with reference to the contract between the defendant and the State Highway Department, I do not think that, when the entire charge is read, this court can say that the jury could have misunderstood that the plaintiff’s right to recover depended on the negligence of the defendant and not on any contractual obligation. I do not think that these charges were error for any of the reasons assigned.