Beringause v. Fogleman Truck Lines, Inc.

• Decision Date: 15 May 1991
• Docket Number: No. A91A0401,A91A0401
• Citation: 409 S.E.2d 524,200 Ga.App. 822
• Parties: BERINGAUSE v. FOGLEMAN TRUCK LINES, INC. et al.
• Court: Georgia Court of Appeals

Page 524

409 S.E.2d 524

200 Ga.App. 822

BERINGAUSE v. FOGLEMAN TRUCK LINES, INC. et al.

No. A91A0401.

Court of Appeals of Georgia.

May 15, 1991.

Reconsideration Denied July 31, 1991.

Certiorari Denied Sept. 6, 1991.

C. Lawrence Thompson, Fletcher Thompson, Marietta, for appellant.

Alembik, Fine & Callner, Lowell S. Fine, G. Michael Banick, Atlanta, for appellees.

CARLEY, Judge.

Appellant-plaintiff's husband was killed when his police car was struck by a truck that was owned by appellee-defendant Fogleman Truck Lines, Inc., and was being operated by appellee-defendant Placide Boucher. Appellant's wrongful death action was tried before a jury and resulted in a verdict in favor of appellees. She appeals from the judgment entered by the trial court on the jury's verdict.

1. Appellant enumerates as error the denial of her motions for a directed verdict and for judgment notwithstanding the verdict as to the issue of appellees' liability.

Pursuant to a plea bargain, appellee Boucher had pled guilty to the criminal offense of homicide by vehicle in the second degree. At the trial of the instant civil action, however, he offered an explanation for his decision to withdraw his original not guilty plea and to accept the plea bargain. See Thompson v. Hill, 143 Ga.App. 272, 275(3), 238 S.E.2d 271 (1977). Moreover, there was evidence to authorize a finding that, immediately prior to the collision, appellee Boucher had been confronted with a sudden emergency when the preceding car, which had only one operating brake light, had slowed in apparent reaction to the oncoming convoy of vehicles in which appellant's decedent was a participant. "The rule of sudden emergency is that one who in a sudden emergency acts according to his best judgment, or who because of want of time in which to form a judgment, acts in the most apparently judicious manner, is not chargeable with negligence. [Cits.]" Barlow v. Veber, 169 Ga.App. 65, 66(1), 311 S.E.2d 501 (1983). " ' "Whether an emergency existed or not, that issue, like all questions of diligence, negligence, contributory negligence and proximate cause except in plain and indisputable cases, was a question for determination by the jury." [Cit.]' [Cit.]" Barnebee v. Shasta Beverages, 184 Ga.App. 435, 436, 361 S.E.2d 704 (1987). Likewise, the record demonstrates the existence of a jury question as to whether the proximate cause of the collision was the negligent failure of appellant's decedent to have avoided it. "[O]ne who becomes aware of the negligence of another, or in the exercise of ordinary care should have become aware of it under circumstances where he could avoid it is himself guilty of negligence in failing to exercise ordinary care to avoid the negligence of the other party." Anderson v. Williams, 95 Ga.App. 684, 686(4), 98 S.E.2d 579 (1957). "The question of whether or not [appellant's decedent] failed to maintain a reasonable and proper lookout ahead which would have allegedly enabled him to avoid the consequences of [appellee Boucher's] negligence [was for the] jury. ' "What is 'a reasonable lookout' depends on all the circumstances at the time and place." ' [Cit.] ... [I]ssues of negligence should not be dealt with by summary adjudication but should be returned to the rightful province of the jury." Findley v. McDaniel, 158 Ga.App. 445, 447(1), 280 S.E.2d 858 (1981).

It follows that, notwithstanding appellee Boucher's guilty plea, the trial court correctly denied appellant's motions for a directed verdict and judgment n.o.v. as to the issue of appellees' liability. See Williams v. Calhoun, 175 Ga.App. 332, 333 S.E.2d 408 (1985). Compare Glenn v. Hutcheson, 194 Ga.App. 12, 389 S.E.2d 523 (1989).

2. As a jury question existed with regard to the applicability of the principle of sudden emergency, the trial court did not err in charging on that principle.

3. Likewise, the existence of a jury question as to the negligence of appellant's decedent in failing to avoid the collision authorized the trial court to charge on that issue.

4. Appellant enumerates as error the trial court's giving of a charge on assumption of the risk. Appellees urge that the giving of the charge was authorized by the evidence that appellant's deceased voluntarily participated in the convoy.

Assumption of risk "assumes that the actor, without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not." Whitehead v. Seymour, 120 Ga.App. 25, 28(4), 169 S.E.2d 369 (1969). However, "[i]t is not true that in any case where the plaintiff voluntarily encounters a known danger he necessarily consents to any future negligence of the defendant. A pedestrian who walks across the street in the middle of a block, through a stream of traffic travelling at excessive speed, cannot by any stretch of the imagination be found to consent that the drivers shall not use care to watch for him and avoid running him down. On the contrary, he is insisting that they shall. This is contributory negligence pure and simple; it is not assumption of risk.... [T]he plaintiff has exposed himself to the risk of future harm, but he has not consented to relieve the defendant of any future duty to act with reasonable care. This is a distinction which has baffled a great many law students some judges, and unhappily a few very learned legal writers." (Emphasis supplied.) Prosser & Keeton, The Law of Torts, § 68, p. 485 (5th ed. 1984).

Accordingly, appellant's deceased may have exposed himself to the risk of future harm by his participation in the convoy. However, his participation in the convoy cannot, "by any stretch of the imagination," be found to evince his "consent" that other drivers not use care to watch for him and avoid hitting his vehicle. On the contrary, by his use of flashing emergency lights, he was insisting that the other drivers use care to watch for him and avoid hitting his vehicle and the other vehicles in the convoy. Thus, participation by appellant's deceased in the convoy might demonstrate his contributory negligence, but it would not evidence his assumption of the risk of being hit in his own lane of traffic by a swerving truck.

In order for appellant's deceased to have assumed the risk of being struck by appellees' truck, there must be evidence that, after the truck had swerved into his lane of traffic, he had then made a conscious and voluntary decision to proceed and risk a head-on collision. It would be only then that appellant's deceased had knowledge of the risk of being hit by appellees' truck. " 'Knowledge of the risk is the watchword of assumption of risk.' Under ordinary circumstances the plaintiff will not be taken to assume any risk of either activities or conditions of which he has no knowledge. Moreover, he must not only know of the facts which create the danger, but he must comprehend and appreciate the nature of the danger he confronts. 'A defect and the danger arising from it are not necessarily to be identified, and a person may know of one without appreciating the other.' Knowledge of the general danger may not be enough, and some courts require knowledge of the specific risk that caused the plaintiff's harm. The standard to be applied is, in theory at least, a subjective one, geared to the particular plaintiff and his situation, rather than that of the reasonable person of ordinary prudence who appears in contributory negligence. If, because of age or lack of information or experience, he does not comprehend the risk involved in a known situation, he will not be taken to consent to assume it. His failure to exercise ordinary care to discover the danger is not properly a matter of assumption of risk, but of the defense of contributory negligence." Prosser & Keeton, The Law of Torts, § 68, p. 487 (5th ed. 1984).

There is evidence that appellant's decedent may have been negligent in failing to have avoided the collision. However, there is no evidence to authorize a finding that appellant's decedent, with full knowledge that appellee Boucher had swerved across the roadway into the lane of on-coming traffic, had nevertheless elected to proceed and had voluntarily assumed the risk of a head-on collision. To the contrary, the undisputed evidence shows that appellant's decedent had attempted to avoid the impending collision. If, in the exercise of ordinary reasonable care for his own safety, appellant's decedent could and should have discovered the danger before he actually did and could and should have avoided the collision, then he would have been contributorily negligent, but he would not have assumed the risk. " 'In working out the distinction the courts have arrived at the conclusion that assumption of risk is a matter of knowledge of the danger and intelligent acquiescence in it, while contributory negligence is a matter of some fault or departure from the standard of reasonable conduct, however unwilling or protesting the plaintiff may be.' " Roberts v. King, 102 Ga.App. 518, 521(1), 116 S.E.2d 885 (1960). To have applied the doctrine of assumption of the risk where, as here, appellant's decedent was struck in his own lane of traffic by a swerving truck, "would require that whenever one drives a motor vehicle on any street or highway he would be subject to the doctrine of assumption of the risk. This is simply beyond the meaning of the [doctrine]." Myers v. Boleman, 151 Ga.App. 506, 510(3), 260 S.E.2d 359 (1979).

The error in giving the unwarranted charge was not harmless. The evidence did not demand a verdict for appellees, and the jury may well have returned its verdict for appellees on the erroneous premise that the death of appellant's decedent was somehow the result of his own voluntary assumption of the risk. Accordingly, the judgment must be reversed and a new trial held. "Assuming that the evidence presented at the retrial ... is the same as that which was adduced...