Browning v. Kahle, 39401

• Citation: 126 S.E.2d 892,106 Ga.App. 353
• Decision Date: 15 May 1962
• Docket Number: No. 2,No. 39401,39401,2
• Parties: Mary C. BROWNING v. D. B. KAHLE
• Court: United States Court of Appeals (Georgia)

Page 892

126 S.E.2d 892

106 Ga.App. 353

Mary C. BROWNING v. D. B. KAHLE.

No. 39401.

Court of Appeals of Georgia, Division No. 2.

May 15, 1962.

Rehearing Denied July 17, 1962.

syllabus by the Court

A charge not authorized by the evidence is error, although such charge may be abstractly correct.

Mary C. Browning brought an action against D. B. Kahle for damages resulting from injuries she sustained in a collision between an automobile in which she was riding as a guest passenger and an automobile driven by the defendant.

The evidence is in sharp conflict, but in substance shows the following facts: The automobile in which the plaintiff was riding was traveling south on Lenox Road, in Fulton County. It was dark. The defendant was traveling north on Lenox Road. The plaintiff's host driver, her husband, pulled his vehicle to his extreme right side of the road to allow automobiles coming from the rear to pass. Thereafter, according to the plaintiff's evidence, the plaintiff's husband turned on his left turn signal and began a left turn into a private driveway. The public road in front of Browning's car was slightly upgrade to the crest of a hill. As her husband was making the turn, the defendant's car topped the hill, at a high rate of speed, and continued on until it struck the middle right side of the vehicle in which the plaintiff was riding. Both the plaintiff and her husband denied seeing the defendant's car before the collision. The defendant's car left heavy skid marks measuring 85 feet, and light skid marks for an additional 15 feet. The speed limit at this location was 35 miles per hour.

A civil engineer testified that the distance from the point of the collision (at eye level) to where the headlights of the defendant's car could first be seen (assuming the headlights were two feet above the ground) was 680 feet.

The defendant's evidence was to the effect that he had been traveling north on Lenox Road at a speed of 'maybe 40, maybe 45 at times'; that he came across the top of the hill on Lenox Road and he saw the headlights of the Browning car which appeared to be stopped; that he proceeded along because there was nothing unusual to indicate the Browning car was going to turn; and that he was 'amazed' when he saw the car turn in front of him, and at that instant, he applied the brakes of his car and the collision ensued. The defendant estimated his speed at 40 miles per hour.

Two expert witnesses testified as to the distance required to stop an automobile when being driven at various speeds, to speeds of a vehicle which leaves skid marks of various lengths, and to the distance a car will travel during the time it takes a normal driver to react to a situation so as to take his foot off the accelerator and put on the brakes.

Two witnesses testified that the defendant passed them about 15 seconds before the collision and just prior to the time he passed over the top of the hill while traveling at a speed of 50 or 60 miles per hour.

Another witness testified that she was traveling in the same direction as the Browning car, and that she had passed the Browning car after it had stopped. During this time she did not see any oncoming traffic. After she passed the Browning car she looked in her rearview mirror to see what the plaintiff's husband was going to do and saw him making a left turn. She then focused her attention on the road ahead. Thereupon she heard the impact of the collision and looking again in the rearview mirror she saw the wrecked vehicles. She did not see the defendant's car at any time after she passed the Browning car until the collision.

The jury returned a verdict for the defendant. The plaintiff filed a motion for new trial on the usual general grounds, and later, by amendment, added several special grounds. Four of the special grounds assign error on the court's charge to the jury relative to negligence, contributory negligence, and assumption of risk on the part of the plaintiff. The court overruled the motion and the plaintiff appealed assigning error.

Marvin G. Russell, Turner Paschal, Atlanta, for plaintiff in error.

Woodruff, Latimer, Savell, Lane & Williams, Edward L. Savell, Atlanta, for defendant in error.

FRANKUM, Judge.

'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 he is afforded a reasonable opportunity to take appropriate action to avoid being injured.' Smith v. Harrison, 92 Ga.App. 576(4), 89 S.E.2d 273. 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. See Harper v. Williams, 89 Ga.App. 645, 80 S.E.2d 722. In every case we have found holding that a guest passenger had a duty to take some affirmative action such as to warn his host driver of a hazard, it appears from the facts and circumstances in those cases that the guest had actual knowledge of the hazard coupled with an opportunity to take appropriate action to avoid injury to himself or to warn to host driver of the hazard. See Mishoe v. Davis, 64 Ga.App. 700, 14 S.E.2d 187; Healan v. Powell, 91 Ga.App. 787(3), 87 S.E.2d 332; Smith v. Harrison, 92 Ga.App. 576(4), 89 S.E.2d 273, supra; Bentley v. Buice, 102 Ga.App. 101, 115 S.E.2d 706; Bellamy v. Georgia Power Co., 67 Ga.App. 569, 21 S.E.2d 294; Wade v. Drinkard, 76 Ga.App. 159, 45 S.E.2d 231.

As stated in Russell v. Bayne, 45 Ga.App. 55, 56, 163 S.E. 290: 'A person riding as a guest may, until he has notice to the contrary, assume that neither the driver nor others upon the highway will be negligent, and may also assume that the driver will exercise the proper care to avoid the negligence of others; but, while the negligence of the host is not imputable to the guest, the guest can not close his eyes to known or obvious dangers arising either from the acts of the driver or from the acts of others, and, if there is a danger from either cause, and the circumstances are such that it would become apparent to a person of ordinary prudence in like circumstances, then it is the duty of the guest to do whatever in the opinion of a jury a person of ordinary prudence would or should do in the same or like circumstances.' See also Roberts v. King, 102 Ga.App. 518, 116 S.E.2d 885.

In the Russell case, supra, as well as Crandall v. Sammons, 62 Ga.App. 1, 7 S.E.2d 575, the plaintiff actually knew of the hazard and did nothing about it. There is not one scintilla of evidence that the plaintiff's host driver in the instant case had been driving negligently before he started to make the left turn, or that he did anything to put the plaintiff on notice that he would be negligent, if in fact he was negligent, in making the left turn. The evidence is insufficient to show that the plaintiff had actual notice of the hazard which imperiled her safety, and under the above authorities, there was no duty resting upon her as a guest to keep a diligent lookout ahead until there was something to place her on notice that she, in the exercise of ordinary care, should keep a lookout or be vigilant as a necessary precaution for her own safety. Accordingly, it was error to charge upon principles of law relating to comparative negligence, contributory negligence, and assumption of risk Judgment reversed.

on the part of the plaintiff, because the evidence did not authorize a charge upon these principles, and the extensive charge by the court on these principles of law likely impressed upon the minds of the jurors that there was an issue as to the plaintiff's negligence. See Healan v. Powell, 91 Ga.App. 787, 87 S.E.2d 332, supra; Granger v. National Convoy &c. Co., 62 Ga.App. 294, 7 S.E.2d 915; Smith v. Harrison, 92 Ga.App. 576, 89 S.E.2d 273, supra. A [106 Ga.App. 357] charge not authorized by the evidence is error, although such charge may be abstractly correct. Central Ga. Power Co. v. Cornwell, 139 Ga. 1(2), 76 S.E. 387. See Butt v. Maddox, 7 Ga. 495(3), and Towns v. Kellett, 11 Ga. 286(2). The court erred in overruling the special grounds of the motion for a new trial assigning as error parts of the charge of the court which were not authorized by the evidence. The remaining special grounds are without merit. As the case must be retried, we will not rule upon the general grounds.

NICHOLS, P. J., and JORDAN, J.,...