Beringause v. Fogleman Truck Lines, Inc.
| Decision Date | 29 June 1993 |
| Docket Number | No. A93A0563,A93A0563 |
| Citation | 209 Ga.App. 470,433 S.E.2d 398 |
| Parties | BERINGAUSE v. FOGLEMAN TRUCK LINES, INC. et al. |
| Court | Georgia Court of Appeals |
Fletcher Thompson, C. Lawrence Thompson, Atlanta, for appellant.
Alembik, Fine & Callner, Lowell S. Fine, G. Michael Banick, Atlanta, for appellees.
Plaintiff Beringause sued defendant trucking company, its driver and insurer, to recover damages for the wrongful death of her husband resulting from a collision between the decedent's car and defendants' truck. A first trial resulted in a defendants' verdict, but judgment was reversed and a new trial ordered because it was deemed reversible error to charge on assumption of the risk. Beringause v. Fogleman Truck Lines, 200 Ga.App. 822, 409 S.E.2d 524 (1991). Upon retrial, a jury awarded plaintiff $100,000. She appeals from the denial of her motion for new trial on the issue of damages.
The evidence adduced at the second trial showed that plaintiff's decedent, a Georgia Technical Institute campus police officer, was participating in a caravan of vehicles escorting the Georgia Tech football team from Athens to Commerce. In order, the caravan consisted of two marked Georgia State Patrol cars, two Southeastern Stageline buses, an equipment van and Beringause's security car. They were traveling northbound along a two-lane road, which at times had a third passing lane. Blue police emergency lights were activated on the three police cars as a safety measure to prevent other vehicles from breaking into the procession, to insure the integrity of the convoy.
Defendants' tractor-trailer was traveling southbound, well within the speed limit, behind a small white car. As the truck crested a hill, the driver observed the blue lights of the convoy approaching from the opposite direction. The first two police cars and the two buses passed the truck. As the van was passing by, the white car slowed or stopped in front of the truck. When the truck driver applied brakes to avoid hitting the white car in front of him, the truck jackknifed and slid across the double yellow line into the oncoming lane, hitting the security car head-on and killing Beringause and a passenger.
Sue Shirley and her daughter Sylvia Thomas were passengers in another vehicle and witnessed the events. Sylvia Thomas testified that the truck jackknifed and slid across the roadway when the truck driver attempted to stop to avoid hitting a white car. Immediately after the collision, she observed a white car stopped in the southbound lane of the roadway and then observed it drive away from the scene. She also testified that the flashing blue lights of the patrol cars in the caravan were the ultimate cause of the accident, in that the white car slowed down in reaction to them, causing the truck driver to brake and skid into oncoming traffic.
Another witness who was driving behind the caravan testified that it It "slowed" and "condensed" traffic in the southbound lane. Members of the caravan straddled their lane and the passing lane, preventing anyone from safely utilizing the passing lane, and at times the caravan exceeded the speed limit. She acknowledged that at one point she was driving behind the caravan at a speed of about 30 miles in excess of the posted limit. She stated: "It was [as] though this group of vehicles owned the road."
1. Enumerations of error 3 and 5 challenge the giving of jury instructions to the effect that plaintiff is barred from recovering if the decedent's negligence was equal to or greater than that of defendants. Although not enumerated as error, plaintiff also asserts that the court erred in giving a charge on avoidance, i.e., that plaintiff may not recover if the decedent by the use of ordinary care could have avoided the consequences. The jury obviously rejected these charges when it returned a verdict in favor of plaintiff. Heath v. L.E. Schwartz & Son, 199 Ga.App. 452, 453, 405 S.E.2d 290 (1991). With respect to the avoidance doctrine, the majority stated in Beringause, supra at 824, 409 S.E.2d 524: "There is evidence that appellant's decedent may have been negligent in failing to have avoided the collision." Compare Carrandi v. Sanders, 188 Ga.App. 562(1), 373 S.E.2d 661 (1988).
2. In enumerations of error 4 and 6, plaintiff contends the court erred in instructing the jury on comparative negligence and concomitantly reduction of damages. Their applicability under the evidence, but not their accuracy, is challenged.
' ' Jenkins v. Burns, 202 Ga.App. 579, 415 S.E.2d 30 (1992).
Evidence of Beringause's participation in the convoy supports an inference of negligence on his part sufficient for the jury in its discretion to reduce plaintiff's damages. Heath, supra, 199 Ga.App. at 454, 405 S.E.2d 290. Jordan v. Ellis, 148 Ga.App. 286, 290, 250 S.E.2d 859 (1978). The charges were not erroneous.
3. Appellant contends in enumerations of error 1 and 7 that the trial court...
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Head v. CSX Transp., Inc.
...comparative negligence was an issue and therefore a new trial was precluded under the rationale of Beringause v. Fogleman Truck Lines, 209 Ga.App. 470, 472-473(3), 433 S.E.2d 398 (1993). See also Palo v. Meisenheimer, 199 Ga.App. 24, 25(3), 403 S.E.2d 881 (1991). The Supreme Court granted H......
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...than in the two cases that form the basis for that court's holding in the instant case. In both Beringause v. Fogleman Truck Lines, Inc., 209 Ga.App. 470(3), 433 S.E.2d 398 (1993) and Palo v. Meisenheimer, 199 Ga.App. 24(3), 403 S.E.2d 881 (1991), the Court of Appeals held that inadequate c......
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Head v. CSX Transp., Inc.
...to the trial court is limited in damages cases involving comparative negligence. As stated in Beringause v. Fogleman Truck Lines, 209 Ga.App. 470, 472-473(3), 433 S.E.2d 398 (1993), "where comparative negligence is involved under the pleadings and the evidence, a verdict for damages for per......
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