Lequire v. Youmans

Banke, Judge. The plaintiff, a minor child, appeals the denial of his motion for new trial in a personal injury suit which resulted in a verdict in favor of the defendant. The plaintiff has enumerated as error the trial judge’s instructions to the jury on due care, contributory negligence, comparative negligence, and the standard of diligence expected from a child of tender years. His attorney has candidly admitted that this appeal is directed more to the Supreme Court than to this court because a reversal of the judgment would require us either to narrow or reverse the Supreme Court’s ruling in Ashbaugh v. Trotter, 237 Ga. 46 (226 SE2d 736) (1976). The Supreme Court ruled there that: "[W]e are of the opinion that the plain language of the Code section [Code Ann. § 105-204] must be applied and that the question of the infant’s alleged negligence is one for the jury in this case under appropriate instructions from the trial court.” Ashbaugh v. Trotter, supra, at p. 47. Under the Ashbaugh decision, the charges given by the trial judge were appropriate. See also Sturdivant v. Polk, 140 Ga. App. 152 (3) (230 SE2d 115) (1976). Argued May 1, 1978 Decided September 12, 1978. Albert B. Wallace, for appellant. Spearman, Thrasher & Whitley, William Lewis Spearman, Gregory T. Presmanes, for appellee. Accordingly, the plaintiffs enumerations of error are dénied. Judgment affirmed. Deen, P. J., and Smith, J., concur.