Cone v. Davis

• Decision Date: 29 November 1941
• Docket Number: No. 28966.,28966.
• Parties: CONE. v. DAVIS.
• Court: Georgia Court of Appeals

17 S.E.2d 849

CONE.

v.DAVIS.

No. 28966.

Court of Appeals of Georgia, Division No. 1.

Nov. 29, 1941.

Syllabus by the Court.

1. The law does not impose any duty on a man to guard against sudden, unforeseen, and not reasonably to be anticipated acts of an animal or another person.

2. The driver of an automobile, when confronted with a sudden peril (not arising from any fault of his own), will not be held negligent when he exercises his right to take care of himself and thus avoid death or bodily injury, provided he acts with suchcare as an ordinarily prudent person would exercise. This rule of law comes within the purview of self-defense, that is, self-protection against injury, and is but a phase of self-preservation which is said to be the first law of nature. Del Ponte v. Societa Italiana, 27 R.I. 1, CO A. 237, 70 L.R.A..N.S., 188, 191, 114 Am.St.Rep. 17; Baltimore & Potomac R. Co. v. Landrigan, 191 U.S. 461, 474, 24 S.Ct. 137, 48 L.Ed. 262; Wabash R. Co. v. De Tar, 8 Cir., 141 P. 932, 4 L.R.A., N.S., 352, 354. Thus, in protecting himself against a sudden peril created by a hog, the driver of the automobile, even though he injured another person (a guest) who did not in any way contribute to the condition creating the emergency, was justified and not negligent, provided, of course, he was not the cause of the sudden peril.

3. The driver of an automobile, confronted with a sudden emergency, a hog appearing on a highway, suddenly applied his. brakes to avoid a collision with the hog, with the result that another automobile following at a distance of approximately forty feet collided with the rear of the front car and a guest riding in the rear car was injured, Held: In an action by said guest against the driver of the front car, such driver was not negligent when he was confronted with a sudden peril, not arising from any fault of his own, in attempting to avoid bodily harm to himself, in choosing one of two alternatives presented, either of which might fairly be chosen by a reasonably prudent person, even though in so acting, he injured another person (a guest in the rear car) who did not in any way contribute to the condition creating the peril. But if the driver of the front car himself was the cause of the emergency, he can not take advantage of this principle of law. 1 Blashfield's Automobile Law and Practice, pp. 481, 482, § 670; 12 Id. p. 79, § 7702; Bechtler v. Bracken, 218 N.O. 515, 11 S.E.2d 721.

4. The negligence, the subject under investigation in this case, is one of common knowledge. It seems to us that the jurors, presumably men of common sense, and, at least, ordinary powers of observation, did not need the aid of either an expert or a nonexpert witness' opinion to enable them to determine correctly whether the facts detailed to the jury did or did not constitute negligence. Mayor, etc., of Milledgeville v. Wood, 114 Ga. 370, 374, 40 S.E. 239; 20 Am.Jur. 651, § 781.

5. The injury here was substantial and of such a nature that a witness of only common knowledge could not with reasonable certainty know whether or not the injury would be permanent. 20 Am.Jur. 649, § 778(19). It was error to allow a party who was a witness to testify that in her opinion her injury was permanent.

6. The other rulings and instructions excepted to, most of which are not likely to occur on another trial, are stated in the opinion of the court, infra.

Error from City Court of Rabun County; R. C. Ramey, Judge.

Suit by Sallie Dills Davis against Harold L. Cone and another for injuries allegedly sustained as result of concurrent negligence of the defendants which caused an automobile collision. To review an adverse judgment, the named defendant brings error.

Judgment as to named defendant reversed.

Davis & Davis, of Clayton, and Neely, Marshall & Greene, of Atlanta, for plaintiff in error.

Bynum & Frankum, of Clayton, for defendant in error.

MacINTYRE, Judge.

A judgment was returned in favor of Sallie Dills Davis against Harold L. Cone and Howard Dills for injuries alleged to have resulted from the concurrent negligence of said defendants. Cone excepted to the overruling of his demurrer and his motion for new trial.

1. The petition alleged that the injuries were received in the following manner: The plaintiff was riding as a guest in the automobile of Dills which was driven by him. Both cars were proceeding down the highway in the same direction. Cone's automobile led. Dills' automobile followed at a distance of about twenty-five to forty feet. As they rounded a sharp blind curve Cone stopped suddenly, Dills' automobile collided with the rear of Cone's car, and the plaintiff received the injuries complained of. As to Cone, the petition alleged that he failed to exercise ordinary care in that he was driving on a sharp blind curve at an excessive rate of speed of "more than forty to forty-five miles per hour;" hefailed to reduce the speed of the automobile "on the approach and on said curve as required by law;" he failed to keep a close lookout as to the movement of Dills automobile; he did not exercise ordinary care to prevent the accident for he had "ample space of at least thirteen feet on his [Cone's] right side of the road, or highway, of free passage without any obstruction"; he did not drive his automobile on the same, and suddenly "brought his automobile from a speed of more than forty to forty-five miles per hour to a stop immediately in front of the automobile driven by said Dills, " without giving the statutory hand and arm signal or extending the hand and arm horizontally from beyond the left side of the automobile. No sudden emergency causing an instinctive action on the part of Cone was shown by the petition. The petition showed only the ordinary perils of the road, and a violation of certain rules of the road by Cone which was alleged to be a failure to exercise ordinary care, and concurred with the alleged negligence of Dills to cause the collision. We think the petition was sufficient to withstand a general demurrer as to Cone.

As to Dills, the plaintiff alleged that he was grossly negligent, and failed to exercise any care with reference to the plaintiff in driving at approximately the same speed as Cone at a distance of from twenty-five to forty feet in the rear of Cone's automobile; in approaching and rounding said blind sharp curve at forty to forty-five miles per hour; in failing to keep a close lookout as to the movement of Cone's automobile; in not reducing the speed of his automobile as he approached and rounded the curve as required by statute; in not applying his brakes and preventing the collision and in driving an automobile "without brakes needed that would hold when applied." As to Dills also we think the petition was sufficient to withstand a general demurrer based on the ground that it did not allege gross negligence against the driver of the rear car, and, therefore, under the pleadings, the contention of Cone that the court had no jurisdiction over him or the subject matter is not meritorious.

2. The court did not err in allowing the plaintiff to qualify the jury as to the relationship of any of its members to stockholders in the Metropolitan Casualty Insurance Company, there being sufficient evidence introduced to authorize the court to find that the defendant Cone was insured by said company. This ruling comes within the rule in Atlanta Coach Co. v. Cobb, 178 Ga. 544, 174 S.E. 131; Tatum v. Croswell, 178 Ga. 679, 174 S.E. 140; Coleman v. Newsome, 179 Ga. 47, 174 S.E. 923.

3. Since the matters contained in the motion for continuance are not likely to occur on another trial, the order of the court overruling the motion will not be reviewed.

4. The uncontradicted evidence disclosed that at the time of the accident the legal speed limit of this State was forty-five miles per hour, and that Cone's automobile (hereinafter referred to as the front car) was running about forty-three miles per hour around a sharp blind curve on a paved highway, the paved portion of which was the customary eighteen feet. The statute provides that "an operator in rounding curves shall reduce [his] speed." Code, § 68-303, subd. e. Dills' automobile (hereinafter referred to as the rear car), in which the plaintiff was riding as a guest, had followed the front car for some time and at a distance of approximately thirty-five to forty feet and at a speed of approximately forty-three miles per hour. A hog suddenly appeared in the road in front of the front car. Cone testified: "The hog appeared on the left hand side of the highway, which was the left-hand side of the road and the inside of the curve, and came out in the middle of the road. When I saw him I judge he was thirty to forty feet ahead of me, and going from the left to the right. The first impulse I had was to put on brakes rather than try to dodge him, and I couldn't attempt to go the same side of the road. * * * After the accident happened Dills told me he saw the hog at the same time I did and asked me why I didn't run into the embankment on the right-hand side rather than have the wreck. There was an embankment on the right side beyond the shoulder of the road, which shoulder was, I imagine three or four feet wide. I got off on that shoulder before I was struck." Thus, the hog was crossing the road from left to right with respect to the direction in which the automobiles were travelling. The driver of the front car suddenly stopped his car, immediately on seeing the hog, but did not give the statutory hand signal that he was stopping. The rear car ran into the front car and, according to a passenger in the rear car, if Dills had applied his brakes immediately he would have prevented the wreck.

"It is well settled that an automobile driver, who by the negligence of another and not by his own negligence is suddenly placed in an emergency and compelled to act instantly to avoid a collision or injury, is not guilty of negligence if he makes such a choice as a...