Bennett v. Haley

• Decision Date: 18 June 1974
• Docket Number: No. 49072,No. 1,49072,1
• Citation: 208 S.E.2d 302,132 Ga.App. 512
• Parties: , 77 A.L.R.3d 353 James R. BENNETT v. Junior HALEY et al
• Court: Georgia Court of Appeals

Page 302

208 S.E.2d 302

132 Ga.App. 512, 77 A.L.R.3d 353

James R. BENNETT v. Junior HALEY et al.

No. 49072.

Court of Appeals of Georgia, Division No. 1.

June 18, 1974.

Rehearing Denied July 17, 1974.

Heard, Leverett & Adams, E. Freeman Leverett, Elberton, for appellant.

William O. Carter, Hartwell, Gary B. Blasingame, Athens, for appellees.

Syllabus Opinion by the Court

CLARK, Judge.

This appeal is by one of two motorist defendants from an adverse verdict and judgment thereon obtained by Haley, a plaintiff pedestrian, against Bennett alone; the jury verdict exonerated Kinney, the co-defendant. Haley has by a separate appeal sought a new trial against Kinney, the exonerated co-defendant. This companion appeal, No. 49073, Haley v. Kinney, 132 Ga.App. 525, 208 S.E.2d 312, is dealt with by another opinion because it involves questions of law differing from those presented in the instant appeal.

Plaintiff Haley was crossing Prince Avenue at its intersection with Milledge Avenue in Athens. He was using a marked cross-walk in a heavily populated area. There was an overhead traffic light at this intersection. Although disputed by defendants in some details, plaintiff's version was that after walking across Milledge Avenue from the west to its east side, he made a right angle turn to his left to go northwardly across Prince Avenue, and then waited on the south side of Prince for the traffic light to change from green to red for eastwest vehicular traffic. This change would give him as a pedestrian the green light to cross Prince Avenue. Prince Avenue is 32 to 40 feet wide and has four lanes of traffic, two for westbound and two for eastbound. Co-defendant Kinney had previously brought his westbound van vehicle to a stop 6 to 8 feet from the cross-walk in conformance with the red light. The location of Kinney's van was in the third automobile lane as counted in the direction plaintiff was proceeding. Kinney's testimony was that the light changed to green so 'I started to move and just as I started this man came running right in front of me, and I applied my brakes, stopped, and he ran right on past me in front of the car that was coming up to my right.' (T. 81-82).

This other car which hit plaintiff was westbound and being driven by the co-defendant, appellant Bennett. Bennett testified he was in the outside lane of Prince Avenue traveling westwardly and when he was 150 to 250 feet away he observed the traffic light to be red, at which time he removed his foot from the gas and coasted forward at a speed of approximately ten miles per hour waiting for the light to change. At this time he saw defendant Kinney's van stopped in the lane to Bennett's left waiting for the light to change. There was also another automobile in that same lane halted at the rear of Kinney's van. When he was approximately 25 feet behind the second vehicle the traffic light changed to green and he observed the brake lights on co-defendant Kinney's van go off and the van started forward. Because the van and the automobile to Bennett's left obscured the view from that direction he was unable to see any pedestrians who might have been using the cross-walk north of the center line of Prince Avenue. As he approached a point near the rear of the second vehicle he noticed that the brake light on the Kinney van came on. He placed his foot on his brake but did not apply his brakes. He said plaintiff 'leaped in front of me,' that he saw Haley for only a split second, that Haley was 'in the air' when hit, was moving rapidly and he (Bennett) didn't have time to turn to the right or left. His vehicle traveled two or three feet after the impact which occurred in the pedestrian cross-walk area. He also testified plaintiff had told him that he, plaintiff, was sorry and that it was his fault. He acknowledged Haley was three-fourths across Prince Avenue when hit by the Bennett car.

Testimony from the investigating policeman was that the Bennett vehicle stopped two feet into the cross-walk. His opinion was that Bennett was going only 10 to 15 miles per hour. Although he testified the Bennett vehicle laid down 24 feet of skidmarks, he later stated Bennett traveled only six feet.

An eyewitness (Kitchens) who was in a car parked on the opposite side of the intersection and headed eastwardly stated that when he first noticed him, the plaintiff was already crossing Prince Avenue which was when the light had changed to green for east-west traffic. According to him, Haley was running all the time that the witness saw him and when plaintiff got to the far side of Kinney's van he jumped and twisted right in front of appellant Bennett's car which was proceeding slowly at the time it hit the pedestrian.

There are 24 enumerations of error. In dealing with them we will follow the order in which they are argued in the excellent briefs furnished by both counsel.

1. The first enumeration of error avers the court erred in charging on plaintiff's right to recover future medical expenses on the basis that there was no evidence which was sufficient or definite enough to support such charge. Appellant relies upon Clayton County Bd. of Ed. v. Hooper, 128 Ga.App. 817, 198 S.E.2d 373.

When appellant's able attorney made his exception to this portion dealing with future medicals, the trial judge replied 'I gave considerable thought to that. It was a very close question. I thought that the evidence of the shots he had received over a protracted period of time justified submitting that issue.' (T. 448). The evidence to which the judge referred was testimony that plaintiff had been receiving shots for pain two or three times weekly during the period of more than three years which had passed since the incident. This included a shot administered the night previous to the trial. There was medical and lay testimony confirming both the seriousness of plaintiff's injuries and the necessity for future medical expenses. This testimony together with plaintiff's exhibit No. 17 which was 12 pages of bills from one doctor, itemized as to services, shows shots administered on various dates from June 23, 1971, to September 16, 1973. All of this evidence was sufficient to authorize the charge excepted to. Compare this evidence with the language in Clayton County Bd. of Ed. v. Hooper, supra, where the court's opinion states: 'An examination of the evidence shows that no evidence was presented from which the jury could ascertain, except by mere conjecture and speculation, that the plaintiff would ever have any such future expenses.' (p. 818, 198 S.E.2d p. 374).

Here the erudite jurist followed the directive of Peak v. Cody, 113 Ga.App. 674, 676(4), 149 S.E.2d 519, 521, that 'the court . . . should clearly inform the jury that the plaintiff can recover only for those items of future medical expenses authorized by the evidence.' As it can serve as a pattern instruction on future medicals we quote it in full: 'Now, the Plaintiff seeks to recover in this case not only for past medical expenses but for medical expenses which he will incur in the future as a proximate result he contends of the events giving rise to this lawsuit. If you find that the Plaintiff is entitled to recover and that the evidence shows with reasonable certainty that the Plaintiff will sustain in the future medical expenses proximately caused by one or both of the Defendants who you find liable and shows with reasonable certainty the amount of such future medical expenses, the Plaintiff would be entitled to recover the amount thereof, reduced to its present value by the method which I have already explained to you in connection with reduction of his future earnings to their present value unless the Plaintiff's recovery should be diminished by his own negligence, if any, under the rules of law which I have already given you in charge.' (T. 427, 428).

2. The second enumeration of error contends the court erred in failing to charge the language of appellant's request relating to the definition of 'unavoidable accident.' Appellant relies principally upon Baggett v. Jackson, 79 Ga.App. 460(1), 54 S.E.2d 146 from which his request to charge was taken. As the court charged fully on the law of 'accident' (T. 419), this was sufficient to satisfy the requirements of the instant case. Our ruling in no way denigrates the force of appellant's argument and the binding precedent of Baggett v. Jackson, supra, as well as the subsequent cases of Pickering v. Wagnon, 91 Ga.App. 610, 86 S.E.2d 621 and Boatright v. Sosebee, 108 Ga.App. 19, 132 S.E.2d 155 cited in his brief. Nevertheless, appellate courts recognize that in a negligence case where the charge comprises 25 pages, the appellant was not actually harmed by the absence of a few words pinpointing such language as defendant here requested, so long as the jury is sufficiently informed of the principle of 'accident.'

Accordingly, we find no harm or injury done to the appellant which would require a new trial. Arcady Farms Milling Co. v. Betts, 93 Ga.App. 255(2), 91 S.E.2d 289.

3. The briefs next deal with the ninth enumeration wherein appellant contends the court erred in failing to charge defendant's request relating to a plaintiff who recklessly tests an observed and clearly obvious peril. This request was taken verbatim from North Dekalb Little League v. Holland, 119 Ga.App. 439, 168 S.E.2d 169. It is based upon a defense contention that 'the evidence in this case would have supported a finding by the jury that plaintiff commenced crossing the street on a yellow light in violation of Code Ann. § 68-1613(b)(2).' (Brief, page 12). Our review of the transcript indicates the absence of any direct evidence that the plaintiff pedestrian came within the category of 'one who recklessly tests an observed and clearly obvious peril.' While there are some conflicts in the testimony of the witnesses with reference to whether the plaintiff was running or walking at the time that he had...