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Braswell v. Clayton5/27/1999
the defendants, then the plaintiff cannot recover. Now, if you find that a defendant was negligent so as to be liable to the plaintiff, and that the plaintiff was also negligent, thereby contributing to the plaintiff's injury and damages, but that the plaintiff's negligence was less than the defendant's negligence, then the negligence of the plaintiff would not prevent the plaintiff's recovery of damages, but would require that you reduce the amount of damages otherwise awarded to the plaintiff in proportion to the negligence of the plaintiff compared with that of the defendants."
As long as there is any evidence that a plaintiff was negligent, a comparative negligence charge will not constitute reversible error. See Beringause v. Fogleman Truck Lines, 209 Ga. App. 470, 472 (433 SE2d 398) (1993). In this case, however, as pointed out in Division 1, above, Clayton admitted during trial that Braswell's advice did not ultimately affect her driving decisions, thereby eliminating any inference that Braswell's advice could have contributed to the accident with Harvell. Moreover, there is no other evidence that Braswell was negligent in any way which could have attributed to her injuries, such as impeding Clayton's view of the road. As a result, the trial court erred by instructing the jury on the concepts of comparative negligence without limiting the application of such doctrine to the two drivers in this case.
As this instruction "could have led the jury into determining that the fault of the plaintiff and defendant was equiponderant, resulting in a finding for the defendant ," it must be considered harmful error, and this case must be reversed. Snowden, supra at 158 (1).
Judgment reversed.
Barnes, J., and Senior Appellate Judge Harold R. Banke concur.
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