Brown v. Sims

• Decision Date: 07 March 1985
• Docket Number: No. 69451,69451
• Citation: 329 S.E.2d 523,174 Ga.App. 243
• Parties: BROWN et al. v. SIMS et al.
• Court: Georgia Court of Appeals

Page 523

329 S.E.2d 523

174 Ga.App. 243

BROWN et al. v. SIMS et al.

No. 69451.

Court of Appeals of Georgia.

March 7, 1985.

Rehearing Denied March 28, 1985.

Certiorari Granted April 25, 1985.

John M. Sikes, Jr., Atlanta, for appellants.

Daryll Love, N. Forrest Montet, John Gilleland, Atlanta, for appellees.

CARLEY, Judge.

Appellants' daughter was killed when the car in which she was a passenger collided with a tractor-trailer truck. Appellants instituted separate civil actions against appellees, who are the drivers of the two vehicles and certain others who were alleged to be vicariously liable. A consolidated trial was held, and a jury found in favor of all appellees. Appellants' motion for new trial was denied, and appellants appeal.

1. Appellants enumerate as error the trial court's instructions to the jury on the following issues: a guest passenger's duty to exercise ordinary care to avoid injury; and the duty of a guest passenger to take affirmative action. It appears from the transcript that appellants did not object to these charges at trial. Accordingly, their propriety in the context of this case will not be reviewed. Hightower v. McIntyre, 170 Ga.App. 269(1), 316 S.E.2d 849 (1984); Hunter v. Batton, 160 Ga.App. 849(1), 288 S.E.2d 244 (1982).

2. After giving its instructions to the jury, the trial court inquired whether there were any exceptions to the charge. At that time, appellants did object to the charges on assumption of risk and comparative negligence, and the giving of those charges is now enumerated as error. However, appellees contend that appellants' objections were untimely because they were not raised during a previous charge conference.

An objection to an instruction which is made during a charge conference, but which is not made or reiterated following the giving of the charge, fails to preserve the matter for review by an appellate court. Hurst v. J.P. Colley Contractors, 167 Ga.App. 56, 57(2), 306 S.E.2d 54 (1983); Mack v. Barnes, 128 Ga.App. 328, 329(2), 196 S.E.2d 684 (1973). " '[T]he requirement is that there be a proper objection after the court instructed the jury and before the jury returned a verdict.' [Cits.]" (Emphasis in original.) Dept. of Transp. v. Brand, 149 Ga.App. 547, 550(6), 254 S.E.2d 873 (1979), overruled on other grounds, MARTA v. Dendy, 250 Ga. 538, 299 S.E.2d 876 (1983). See also OCGA § 5-5-24(a). If an objection made only at a charge conference is insufficient to preserve an issue for appeal, then it follows that the failure to make an objection at a charge conference should not preclude a party from making an objection at the appropriate time, after the charge is given. Therefore, we hold that an objection made after the charge and in response to the trial court's inquiry concerning exceptions to its instructions is timely, whether or not that objection was raised during a previous charge conference.

3. Appellants assert that the trial court's charge on assumption of risk was not authorized by the evidence.

"It is a well established rule that an instruction is not inapplicable where there is any evidence, however slight, on which to predicate it. [Cit.] It is not even necessary [that] there should be direct evidence going to that point; it is enough if there be something from which a legitimate process of reasoning can be carried on in respect to it. [Cit.]" Lockard v. Davis, 169 Ga.App. 208, 210, 312 S.E.2d 194 (1983). The evidence in the instant case was that appellants' daughter was riding in a car driven by appellee Holly Sims. The two young ladies stopped at a gas station and asked for directions. Instead of following the instructions supplied by the attendant, Ms. Sims drove away in another direction. She exited the gas station and proceeded northbound in the southbound lane of a divided highway in order to reach a paved crossover in the grassy median. Upon reaching the crossover, she drove her car onto the highway directly into the path of an oncoming tractor-trailer truck. The vehicles collided, and appellants' daughter was killed. While Ms. Sims was executing the aforementioned maneuvers, appellants' daughter was adjusting the tape player in the Sims automobile, and accordingly was looking down into the center of the car rather than at traffic or Ms. Sims' path of travel.

"The necessary elements of assumption of risk by [a guest passenger] have been clearly defined as follows: first, there must be a hazard or danger inconsistent with the safety of the guest; second, the guest must have a knowledge and appreciation of the hazards; and third, there must be acquiescence or willingness on the part of the guest to proceed in the face of danger. [Cits.] Thus, it will be seen that the basis of the doctrine of assumption of risk is that a party assumes the risk of danger which he knows and appreciates or that the law will hold that he does know and appreciate." Roberts v. King, 102 Ga.App. 518, 521-522, 116 S.E.2d 885 (1960). " ' "No duty devolves upon the guest passenger, who has no right or duty to control the operation of the automobile, unless the circumstances are such that [s]he is afforded a reasonable opportunity to take appropriate action to avoid being injured." [Cit.] A guest passenger is not bound to exercise the same degree of care and diligence as a driver of an automobile in which the guest is riding. [Cit.] In every case we have found holding that a guest passenger had a duty to take some affirmative action such as to warn [her] host driver of a hazard, it appears from the facts and circumstances that the guest had actual knowledge of the hazard coupled with an opportunity to take appropriate action to avoid injury to [her]self or to warn the host driver of the hazard. [Cits.]' ... [Cit.]" (Emphasis in original.) King v. Parson, 149 Ga.App. 28, 29, 253 S.E.2d 426 (1979). See also Browning v. Kahle, 106 Ga.App. 353, 355-356, 126 S.E.2d 892 (1962).

Appellees contend that there was some evidence that appellants' daughter had notice of the hazard created by Ms. Sims' driving, and that she knowingly acquiesced therein. It is true that there was evidence from which a jury could infer that appellants' daughter was aware that Ms. Sims did not follow the directions provided by the gas station attendant, and that Ms. Sims proceeded...