Cohran v. Douglasville Concrete Products, Inc., 58627

• Decision Date: 06 February 1980
• Docket Number: No. 58627,58627
• Citation: 153 Ga.App. 8,264 S.E.2d 507
• Parties: COHRAN v. DOUGLASVILLE CONCRETE PRODUCTS, INC.
• Court: Georgia Court of Appeals

Page 507

264 S.E.2d 507

153 Ga.App. 8

COHRAN v. DOUGLASVILLE CONCRETE PRODUCTS, INC.

No. 58627.

Court of Appeals of Georgia.

Argued Oct. 2, 1979.

Decided Jan. 9, 1980.

Certiorari Denied Feb. 6, 1980.

G. Michael Hartley, William L. Martin, III, Douglasville, for appellant.

Palmer H. Ansley, Meade Burns, James S. Strawinski, Atlanta, for appellee.

CARLEY, Judge.

Appellant, plaintiff below, was driving his car along the highway when he observed the appellee's truck protruding from a driveway into the lane of oncoming traffic. As he approached the truck, appellant began to merge into the adjoining lane so as to avoid a collision and believed that he had done so successfully. However, as appellant pulled even with the stationary but protruding truck and attempted to pass it, he was "surprised" when a collision between the two vehicles occurred. His car had struck a bumper and boom which extended some feet in front of the body of the truck. Appellant sustained injures in the collision and brought suit to recover. From the judgment entered on a jury verdict in favor of appellee, appellant brings this appeal.

1. Appellant enumerates as error the trial court's charge to the jury on "accident." It is urged that such a charge was not warranted under the facts and evidence. " 'There is generally no liability for an unavoidable accident, which is defined as one which under all the circumstances could not have been prevented by the exercise of reasonable care.' (Cit.) 'In its proper use the term "accident" excludes negligence that is, an accident is an event which occurs without the fault, carelessness, or want of proper circumspection of the person affected, or which could not have been avoided by the use of that kind and degree of care necessary to the exigency and in the circumstances in which he was placed.' (Cit.)" Ware v. Alston, 112 Ga.App. 627, 631, 145 S.E.2d 721, 724 (1965). "The principle of law relating to the theory of accident can only apply when under some theory of the case the injury is the result of the negligence of neither of the parties, but is a mere casualty due to the negligence of no one. (Cit.)" Harper v. Hall, 76 Ga.App. 441, 447, 46 S.E.2d 201, 204 (1948).

The evidence in the instant case would not support a finding that the collision was an "accident" as thus defined. There was no evidence that the incident may have occurred because of a mechanical failure of either of the two vehicles, Ware v. Alston, 112 Ga.App. 627, 145 S.E.2d 721, supra, or because of road conditions, Jackson v. Martin, 89 Ga.App. 344, 79 S.E.2d 406 (1953). There was no evidence that the collision and resulting injuries occurred because of the actions of anyone other than the two parties. Cobb v. Big Apple Supermarket, 106 Ga.App. 790, 128 S.E.2d 536 (1962); Boatright v. Sosebee, 108 Ga.App. 19, 132 S.E.2d 155 (1963); Delk v. Sellers, 149 Ga.App. 439, 441(2), 254 S.E.2d 446 (1979). Nor was there any evidence that the incident arose because of any "unforeseen or unexplained" cause. Stone's Independent Oil Dist. v. Bailey, 122 Ga.App. 294, 303, 176 S.E.2d 613 (1970).

The only evidence as to the occurrence was that appellant drove his car into the bumper and boom of appellee's truck, which was protruding into the road. At the time that appellant was driving his car and that the appellee's driver allowed the truck to protrude into the path of oncoming traffic, there is no question that both had sufficient capacity to exercise due care for their own safety and the safety of others. Compare Cobb v. Big Apple Supermarket, 106 Ga.App. 790, 128 S.E.2d 536, supra; Hieber v. Watt, 119 Ga.App. 5, 165 S.E.2d 899 (1969). Hence, both would be chargeable with any negligence occasioned by their failure to exercise such care. The evidence presents no theory of how the collision occurred other than the failure of either appellant or the appellee's driver, or both, to exercise due care. Warren v. Ga. S. & F. R. Co., 77 Ga.App. 886, 50 S.E.2d 128 (1948); Baggett v. Jackson, 79 Ga.App. 460, 54 S.E.2d 146 (1949). There is no evidence to support the proposition that the injuries might have resulted although both appellant and the appellee's driver exercised due diligence. Compare, e. g., Brown v. Mayor, etc., of Athens, 47 Ga.App. 820(3), 171 S.E. 730 (1933).

Since there was no evidence that the collision was an "unintended occurrence which could not have been prevented by the exercise of reasonable care," Brewer v. Gittings, 102 Ga.App. 367, 376, 116 S.E.2d 500, 506 (1960), and the evidence shows, rather, that the collision and resulting injuries were due to the negligence of appellant, or of the appellee's driver, or to both, it was error to charge on "accident." Henson v. Putnam, 123 Ga.App. 254(1), 180 S.E.2d 269 (1971). "There was no evidence in the case from which the jury could have found that the collision was an unavoidable accident. Somebody must have been at fault, and the question for the jury to determine was, who was guilty of negligence; and they should have been permitted to go directly into that question, without having their attention distracted by the consideration of the impossible theory that the (injury complained of) was the result of an accident." Atlantic C. L. R. Co. v. Jones, 132 Ga. 189, 196, 63 S.E. 834, 838 (1909). See also Morrow v. Southeastern Stages, 68 Ga.App. 142, 22 S.E.2d 336 (1942). The evidence not supporting the charge on "accident," that the appellee plead it as a defense does not require a contrary result. Cf. Thornton v. Hampton, 128 Ga.App. 122, 123(3), 195 S.E.2d 795 (1973).

Not only was it error to charge on "accident" in the instant case, the instruction on this principle that was given was erroneous. The jury was instructed: "(A)n accident is an event which takes place, without one's foresight or expectation, that which takes place without design. I charge you further that if you find that the occurrence which happened in this incident was the result of an accident, you should find for the defendant."

" 'Unfortunately, the word "accident" has two separate and distinct meanings. In Georgia law . . . it means, in connection with personal injury cases, an injury which occurs without being caused by the negligence of either the plaintiff or the defendant. (Cits.)' . . . 'The idea of accident excludes responsibility because of negligence.' However, to the average layman, accident means only what the definition given it in Code § 102-103 states: 'Accident is an event that takes place without one's foresight or expectation; that which takes place or begins to exist without design,' in other words, an unintentional act as opposed to something done in order to achieve a particular consequence. Therefore, to charge a jury of laymen that, if the collision was the result of an accident, the plaintiff cannot recover is frequently taken to mean that if the act was not intentional the plaintiff cannot recover, unless the meaning of the word 'accident' is clearly explained in the same context . . ." Bush v. Skelton, 91 Ga.App. 83, 84-85, 84 S.E.2d 835, 837 (1954).

The error in Bush was the failure to define "accident" as that word has application in personal injury cases an injury which occurs without being caused by the negligence of either the plaintiff or the defendant. It was held that this failure "might well" have led the jury to apply the layman's definition of "accident" contained in Code Ann. § 102-103 an unintentional act and conclude that if the occurrence was unintentional the plaintiff could not recover. In the instant case, the trial judge did not fail to define "accident"; he instructed the jury on "accident" in the very language of Code Ann. § 102-103. Thus, the error that "might well" have occurred in Bush did occur, without doubt, in the instant case. Here the jury was not merely left to the conclusion that if they found the collision was the result of an "unintentional act" appellant could not recover. They were specifically instructed that if they found the collision took place without foresight, expectation or design, appellant could not recover. This was clearly erroneous and harmful and requires the grant of a new trial. A charge on the defense of accident in a personal injury case in the language of Code Ann. § 102-103 is error. The approved charge on "accident" in such cases is found in Caldwell v. Knight, 94 Ga.App. 827, 828(2), 96 S.E.2d 331 (1956); Brewer v. Gittings, 102 Ga.App. 367, 375(6), 116 S.E.2d 500, supra.

2. Appellant argues that the charge on Code Ann. § 68A-801 was not warranted by the evidence. That section, in essence, requires drivers to drive at a speed which is "reasonable and prudent under the conditions and having regard for the actual and potential hazards then existing." Appellant testified that he was aware of the fact that the truck was protruding into his lane of traffic "in time to realize what was happening." He further testified that he began to merge left so as to avoid striking the truck and that he did so at "about forty miles an hour." The investigating officer estimated appellant's speed at forty-five miles per hour. This evidence as to appellant's speed in approaching the obstructing truck authorized a charge on Code Ann. § 68A-801. Dozier v. Brackett, 148 Ga.App. 110, 111(2), 251 S.E.2d 101 (1978). The fact that either rate of speed forty or forty-five miles per hour would be within the posted speed limit at the scene of the collision does not affect the propriety of the charge. Cf. Currey v. Claxton, 123 Ga.App. 681(1), (1a), 182 S.E.2d 136 (1971). There was no error.

3. Appellant enumerates the failure to give certain requested charges on the doctrine of "sudden emergency." Resolution of this issue requires an analysis of the factors which must appear in order to make the doctrine applicable and whether those factors were present in the instant case.

"The purposes of judicial instructions on the law relating to sudden peril...