Bennett v. George

• Decision Date: 12 March 1962
• Docket Number: 39240,No. 1,Nos. 39239,s. 39239,1
• Citation: Bennett v. George, 125 S.E.2d 122, 105 Ga.App. 527 (Ga. App. 1962)
• Parties: J. E. BENNETT v. Charles D. GEORGE, by next friend. Charles D. GEORGE, by next friend, v. J. E. BENNETT
• Court: Georgia Court of Appeals

Page 122

125 S.E.2d 122

105 Ga.App. 527

J. E. BENNETT v. Charles D. GEORGE, by next friend.

Charles D. GEORGE, by next friend, v. J. E. BENNETT.

Nos. 39239, 39240.

Court of Appeals of Georgia, Division No. 1.

March 12, 1962.

Powell, Goldstein, Frazer & Murphy, Edward E. Dorsey, C. James Jessee, Jr., Atlanta, for plaintiff in error.

G. Seals Aiken, Atlanta, for defendant in error.

Syllabus Opinion by the Court

HALL, Judge.

1. The twelve-year-old plaintiff (defendant in error) sued the defendant (plaintiff in error) for personal injuries he received when allegedly the defendant ran his automobile into a bicycle. Donald Barber, age 14, was operating the bicycle and the plaintiff was riding on the crossbar. After a verdict for the defendant the trial judge granted a new trial on the ground of a charge given at the defendant's request. The defendant assigns error on this ruling. The charge was: 'A passenger on a bicycle must exercise due care for his or her own safety. The guest cannot close his eyes to known or obvious dangers arising from the acts, or condition, of the operator of the bicycle on which he or she is riding. A guest on a bicycle cannot at all times treat himself as 'dead freight', but, when negligence on the part of the operator arises, either because of the acts or the condition of such operator, the guest, if a minor, must exercise such due care as his capacity, mental and physical, fits him to exercise under the then existing circumstances.' There was no evidence in the case showing that the plaintiff closed his eyes to known or obvious dangers or treated himself as 'dead freight'. On the contrary, there was testimony by the bicycle operator that the plaintiff told him there was a car coming behind and 'we had better get over to the side,' and that he (the operator) never did see the car before it hit him. From evidence that the plaintiff was sitting on the crossbar of the bicycle, and that the bicycle suddenly cut left into the automobile, there does not necessarily arise an inference that would support the charge, as contended by the defendant. The case of Crandall v. Sammons, 62 Ga.App. 1, 7 S.E.2d 575, relied on by the defendant, does not require the giving of the charge objected to. In that case, the court held there were facts in evidence from which the plaintiff, a guest passenger in an automobile, might have been put on notice of the inattentiveness of the driver and warned him of danger or otherwise acted in self protection, which the plaintiff did not do.

The court did not err in granting a new trial on this ground.

2. The plaintiff in the cross bill of exceptions assigns error on the trial judge's overruling of the remaining grounds of the motion for new trial. Special Ground 4 contends that the court's language: '* * * in explaining the law in reference to certain defenses which the defendant contends are applicable in this case, it will be necessary for me to refer to the plaintiff's ordinary negligence and due care on the part of the plaintiff,' was equivalent to a charge to the jury that the plaintiff was guilty of ordinary negligence. This language when construed with the remainder of the charge does not suggest such an opinion or assumption by the court. The manner in which the judge used the terms 'due care' and 'ordinary care' was not misleading to the jury and the charge was not erroneous. Pierce v. Southern Ry. Co., 8 Ga.App. 426, 69 S.E. 494; Brewer v. Gittings, 102 Ga.App. 367, 372, 116 S.E.2d 500. There was no error in overruling Ground 4.

3. In Grounds 5, 6, and 7 plaintiff complains of the court's charges on the defendant's contention that plaintiff's injuries were caused by his own negligence. that plaintiff by the exercise of ordinary care could have avoided the consequences of the defendant's alleged negligence, and that plaintiff's negligence was equal to or greater than defendant's, and on the law applicable to these contentions.

There was evidence in the case to support charges on these rules of law. Plaintiff argues that these charges did not fit the case because they gave the impression that plaintiff was required to exercise 'ordinary care' and did not adequately explain that the law required plaintiff to exercise 'only due care of a child of tender years such as its capacity, mental and physical, fitted it for exercising in the actual circumstances of the occasion and situation under investigation,' which is not the equivalent of ordinary care. Immediately preceding these charges the court had explained the meaning of 'ordinary negligence and due care on the part of plaintiff' in the very language that plaintiff contends was applicable to him. Considering the charge as a whole we think that the standard of care required of plaintiff was made clear to the jury. Brewer v. Gittings, 102 Ga.App. 367, 372, 116 S.E.2d 500, supra. There was no error in overruling these grounds.

4. In Ground 8 plaintiff contends that there was no evidence in the case to support the court's charge that '* * * one who knowingly and voluntarily takes a risk of injury to his person, the danger of which is so obvious that the act of taking such risk in and of itself amounts to a failure to exercise for his own safety that due care which his capacity, mental and physical, fits him to exercise under the then existing circumstances cannot hold another liable for damages for injuries thus occasioned.' We have found no case that would require a decision that the plaintiff's riding on the crossbar of a bicycle along with the other facts and circumstances of this case would be taking a risk that would, or would not, amount to a failure to exercise due care on the part of the plaintiff. This question, like other questions of negligence and proximate cause, must be left to the jury. There was no error in overruling Ground 8.

5. In Ground 10 the plaintiff contends that the court's charge defining the duty to exercise ordinary care in a sudden peril or emergency was inapplicable because there was no evidence to support it. The case of Christian v. Smith, 78 Ga.App. 603, 51 S.E.2d 857, on which plaintiff relies, differs from this case in that there 'the child was under 6 years of age and was not chargeable with negligence. * * *' and '* * * The 'sudden-appearance' doctrine, involved in cases where a child suddenly appears from behind some obstacle and runs into a vehicle under circumstances where the driver had no occasion to anticipate it and guard against it and could do nothing to avoid collision, * * *' did not apply. The evidence in this case authorized the charge on sudden emergency. There was no error in overruling Ground 10.

6. Ground 11 complains of the following charge: 'I charge you that the driver of a vehicle has a right to assume that the drivers of other vehicles will obey the law. I charge you that one who is himself rightfully using the highway or street has a right to the use thereof which is superior to that of one who is violating traffic regulations, and in the absence of knowledge, one rightfully using the highway or street is not required to anticipate that some other user will unexpectedly violate the law or rule of the road and create a situation of danger.' The right to assume that the drivers of other vehicles will obey the law is not an absolute right. A duty to anticipate that some other user will unexpectedly violate the law may exist in some situations. 'The right to assume' and the 'duty to anticipate' depend upon whether the circumstances are sufficient to warn one driver that another may fail to obey the law, which is a question for the jury. Hennemier v. Morris, 48 Ga.App. 840, 173 S.E. 924; see also English v. Georgia Power Co., 66 Ga.App. 363, 367 17 S.E.2d 891. The defendant testified that when he first saw the bicycle it came out from in front of a car; that it rolled out in the middle of the street and continued right down the middle of the road; that he could see somebody in the middle sitting across the bar and could see his feet hanging off the side. The defendant's wife testified: 'The small boy had his feet to the right, sticking out toward the right and the larger boy then was holding onto the handle bars and it seemed his feet were sticking, kind of hanging down, he couldn't hold them straight out, hanging down * * *. It ran into the middle of the street and my husband started blowing the horn, just continually blowing the horn and pulling over to the left of the curb as far as he could get on the left hand side and then when we were near them he saw they were just about ten feet or twelve feet where he could pass them all right if they stayed in the place they were in at the time but suddenly they cut right into the right fender of our car.' The defendant's evidence raised the question whether the circumstances were such as to justify an assumption by the defendant that the bicyclist would obey the law.

The court's charge set out above was not a complete statement of the general principle that a person rightfully using the highway has a right to assume that others will obey the law. It should have gone further and explained that whether the circumstances were such as to warn a driver that another might fail to obey the law, or such that a driver in the exercise of ordinary care could assume that another will obey the law, was a question for the jury. When a judge undertakes to charge the law upon a particular subject, he should charge all on the subject that is material and applicable to the case. Tucker v. Talmadge, 186 Ga. 798, 800, 198 S.E. 726; Harper v. State, 17 Ga.App. 561, 87 S.E. 808. The court erred in overruling Ground 11.

7. Ground 12 complains of an excerpt from the court's charge in which, first, the judge read certain provisions of an ordinance of the City of Atlanta regulating bicycles (Code of the City of Atlanta, 1953 Cum.Supp., §§ 30.158, 30.164, 30,166, 30.167, 30.169), set out in the defendant's answer,...