Baggett v. Jackson

• Decision Date: 21 May 1949
• Docket Number: No. 32442.,32442.
• Citation: 54 S.E.2d 146,79 Ga.App. 460
• Parties: BAGGETT. v. JACKSON et al.
• Court: Georgia Court of Appeals

79 Ga.App. 460

54 S.E.2d 146

BAGGETT.

v.JACKSON et al.

No. 32442.

Court of Appeals of Georgia,

Division Nos. 1 and 2.

May 21, 1949.

Rehearing Denied June 22, 1949.

Syllabus by the Court.

1. An accident, in a strict legal sense, as applied to negligence cases, refers to an event which is not proximatelycaused by negligence, but instead arises from an unforeseen or unexplained cause. But it is also often used to indicate a happening which, although not wholly free from negligence by some person, was not proximately caused by a failure of either of the parties to a case to exercise ordinary care in the situation. The charge of the court on accident in the present case was not error, being adjusted to the pleadings and evidence. Furthermore, the jury did not apply the charge on accident, but found in favor of the plaintiff.

2. A person threatened with an imminent danger is not held to the same circumspection of conduct to which he would be held if he were acting without the compulsion of the emergency. A person has a right to choose even a dangerous course, if that course seems the safest one under the circumstances. No error is shown by the charge of the court on emergency.

3. Where an injury is the result of the negligence of the plaintiff, or where the plaintiff fails to exercise proper care for his or her own safety on discovering the negligence of the defendant, or where by the exercise of ordinary care by the plaintiff the negligence of the defendant could have been avoided, there can be no recovery by the plaintiff; but even though the plaintiff was negligent in some manner, where the defendant's negligence also contributed to the injury and was of a greater degree than the plaintiff's negligence, the plaintiff could still recover, although recovery would be diminished in proportion to the negligence of the plaintiff compared with that of the defendant. But where the negligence of the plaintiff and defendant are equal, or the negligence of the plaintiff is greater than that of the defendant, the plaintiff cannot recover. Under the facts of this case, the charge of the court on comparative negligence was authorized, and was not error for any reason assigned.

4. Inasmuch as an application of the rule of comparative negligence was authorized, the verdict of $500 should not be disturbed.

5. The trial judge did not err in overruling the plaintiff's motion for a new trial.

FELTON and TOWN SEND, JJ, dissenting.

Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.

Suit by Hattie E. Baggett against W. R. Jackson and another for injuries sustained by plaintiff when struck by a truck. Verdict for plaintiff and to review a judgment overruling her motion for new trial, plaintiff brings error.

Judgment affirmed.

Mrs. Hattie E. Baggett sued William Roy Jackson and the R. & R. News Company, a corporation, in Fulton Superior Court, for $15,000 damages, on account of personal injuries, allegedly sustained when she was struck by a truck which was being operated at the time by the defendant Jackson within the scope of his employment with the defendant corporation. Defendants, in their answer, denied the allegations of negligence, and pleaded that any injuries which the plaintiff received were the result of her own negligence and the failure on her part to exercise ordinary care for her own safety and protection.

From the evidence it appears that the plaintiff lived about.3 of a mile east of the city limits of Douglasville, on highway No. 78, which, at this point, is paved, and straight for several hundred yards in each direction. According to the plaintiff's testimony she was 67 years old at the time of the occurrence, and, on the morning of April 16, 1947, she went to her mail box, located across the highway from the house, placed a letter in the mail box, and, before going back across the highway again, looked in both directions, did not see any cars on the highway, then walked across the pavement, and had taken about two steps in the driveway leading to her house, when she heard the squealing of brakes, and the next thing she remembered she was lying on a quilt on theside of the highway. The defendant Jackson testified that, on the morning of April 16, 1947, he was driving his truck toward Douglasville from Atlanta, at a speed of not more than 45 miles per hour, that a Greyhound bus was coming toward him from Douglasville, and that the plaintiff was at the mail box, on his left side of the road, when he first saw her, that about the time the front of the bus was even with her, she turned around, and he started sounding his horn to attract her attention, in the meantime applying the brakes, that the bus obscured his view momentarily, that when she came in view again, after the bus had passed, she was about a third of the way across the highway, and moving in front of him, that he applied the brakes, all he had, and cut to the right and off the pavement, about 18 inches or 2 feet, to avoid hitting her, and that the left side of the truck, between the left door and the rear fender, hit her. A witness for the plaintiff, who was coming out of a driveway in an automobile near the scene of the occurrence, but who did not actually see it, testified that the impact of the truck knocked the plaintiff to the left side of the road, i. e, in respect to the direction in which the truck was moving. It appears that the State Patrol was notified of the occurrence almost immediately after it happened, about 7:45 a. m., and Sgt. R. H. Bur-son arrived at the scene around 8:25 a. m. He testified that there were skid marks on the pavement for approximately 90 feet, and that the truck was on the right or north side of the road, toward Douglasville, in a sideways manner, and that there was a visible mark from where the driver applied the brakes to the point where the truck came to a stop, and that the driver had apparently pulled to the right, onto the shoulder of the road. The plaintiff testified that prior to the occurrence her health had been good, and this was substantiated by other witnesses, and she described her injuries received at the time as being a broken right arm, torn ligaments, a cut on the head, which required five stitches, a hole in the back of her head, a knot on her jaw, and bruises from the waist down, and she stated that after the occurrence and while at the hospital her back and right arm hurt terribly, and that she has been in pain most of the time since receiving the injuries. Dr. Martin T. Myers testified that he was an orthopedic surgeon and that he examined the plaintiff on October 25, 1948, for the first time, that x-ray pictures of her back and right knee were made at his direction, and he put a cast on her. Testifying with the aid of the x-ray pictures, he described the condition of her back, and stated that he found evidence of a fracture of long standing, and also some changes attributable to arthritis, which he said was not unusual in a person the age of the plaintiff, and it was his opinion that she had suffered from arthritis for a long time. He testified that her condition was one that would cause constant pain, and would require the wearing of a brace or surgical support. He also noted a "sort of roughening of the knee" which he stated might have been the result of some tearing or fracture. Dr. Myers estimated that she was about 50% disabled. There was evidence of medical and hospital expense, estimated by the daughter of the plaintiff as about $350, not including charges made by Dr. Myers, and also evidence that the plaintiff's grandson now devoted about half of his time helping the plaintiff, which, if hired, would cost $5 or $6 per day.

The jury returned a verdict for the plaintiff for $500, judgment was rendered accordingly, and the plaintiff excepted to the judgment overruling her motion for a new trial.

C. E. Moore, E. L. Fowler, Atlanta, for plaintiff in error.

W. Colquitt Carter, Atlanta, Bryant, Carter & Ansley, Atlanta, for defendants in error

SUTTON, Chief Judge (after stating the foregoing facts.)

1. Error is assigned in special ground 1 of the motion for a new trial on the following charge of the court: "Gentlemen, an accident is an occurrence where there is no negligence attributable to either of the parties, so an accident, if there be such in the case, would not be the basisfor recovery." The plaintiff in error does not contend that the charge is erroneous as an abstract principle of law, but contends that it was not adjusted to the pleadings and evidence, and was misleading and confusing to the jury. An accident, in a strict legal sense, as applied to negligence cases, refers to an event which is not proximately caused by negligence, but instead arises from an unforeseen or unexplained cause. See Stansfield v. Gardner, 56 Ga.App. 634, 645, 193 S.E. 375; Richter v. Atlantic Co., 65 Ga.App. 605, 608(4), 16 S.E.2d 259; Code, § 102-103. But it is also "often used to indicate a happening which, although not wholly free from negligence by some person, was not proximately caused by failure of either of the parties to a case to exercise ordinary care in the situation." Eddleman v. Askew, 50 Ga.App. 540, 542(8), 179 S.E. 247, 250. See, also, the Richter case, supra. The plaintiff in error here, as plaintiff in the court below, based her action on the alleged negligence of the defendant driver, and the defendants, by their answer, denied this negligence and attributed the occurrence to the negligence of the plaintiff. Considering the pleadings of the parties, one theory of the occurrence was that the event was not caused by the negligence of the parties involved in the litigation. When the evidence is considered, according to the testimony of the plaintiff, she was entirely across the highway and off the pavement before the truck struck her, which would indicate that she was not guilty of any negligence, but. if, without rejecting this testimony, the testimony of the defendant driver is...