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McDowell v. Hartzog

The plaintiffs preserved their objection on appeal to a charge at the charge conference on failure to obey a traffic signal, since they excepted to the charge as given on the same ground during jury deliberation, and the trial court clearly understood the basis of their objection.

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We granted certiorari in this case to determine whether the Court of Appeals erred in its conclusion that appellants failed to preserve for appeal their objection to a jury instruction. See McDowell v. Hartzog, 312 Ga. App. 162 718 SE2d 20 2011. Because we find that the objection was properly preserved, we reverse the decision of the Court of Appeals and remand to that court for its consideration of this enumerated error.

Appellants Hershell and Cindy McDowell were involved in a traffic accident in which their vehicle collided with a vehicle driven by appellee Gregory Hartzog. Appellants sued Hartzog and his employer, Optimus Solutions, LLC. Because there was some evidence that Mr. McDowell, who was driving his vehicle, may have run a stoplight before the collision and skidded into Hartzog while avoiding a third vehicle, Hartzog requested a charge on failure to obey a traffic signal. The trial judge and parties discussed the requested charge at a charge conference, and finding that the charge was attuned to the evidence, the trial judge agreed to give it. Appellants’ counsel responded by stating, “as long as it’s noted it’s over my objection, we are good.” The judge gave the traffic signal charge, and after the jury was excused, inquired whether the parties had any exceptions. Appellants’ counsel excepted, reminding the court of the “exceptions that we had, the ones we talked about the other day. . . . I know the one on stop lights, we excepted to.” The exceptions were noted by the trial court and the jury ultimately returned a defense verdict.

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