Cox v. Allen

• Decision Date: 20 June 2002
• Docket Number: No. A02A1628.,A02A1628.
• Citation: 567 S.E.2d 363,256 Ga. App. 53
• Parties: COX v. ALLEN.
• Court: Georgia Court of Appeals

567 S.E.2d 363

256 Ga. App. 53

COX v. ALLEN.

No. A02A1628.

Court of Appeals of Georgia.

June 20, 2002.

Jay, Sherrell, Smith & Braddy, Robert E. Sherrell, Fitzgerald, for appellant.

Reinhardt, Whitley, Wilmot & Summerlin, Glenn Whitley, Tifton, for appellee. ELDRIDGE, Judge.

On May 21, 2001, judgment was entered for the defendant, Evelyn House Allen, and against the plaintiff, Jamie R. Cox, on her personal injury action, which was tried to a verdict. Finding no error of law, we affirm.

On May 27, 1999, Allen was driving in a southerly direction on Tift County Road 424, a dirt road, and approached the stop sign for the intersection of County Road 159, a paved road. Allen turned left onto Road 159 in an easterly direction and brought her Cadillac four-door sedan to a momentary stop diagonally across the road after entering the intersection. Cox was driving westerly on Road 159, approaching the intersection. When Cox was several hundred feet from the intersection, Allen made a left turn in front of her and stopped momentarily diagonally across her path. Cox swerved onto the other side of the road into the eastbound lane and braked. Allen completed her turn into the eastbound lane; the vehicles collided head-on. Allen received a traffic citation for failure to yield the right-of-way and entered a plea of guilty to this charge. Cox filed this personal injury action.

At the trial of the case, John J. Tyson was called by the defense and qualified as an expert witness, a law enforcement officer. Over objection, he testified that although he had neither investigated the collision nor visited the collision scene, his opinion was that Cox was driving too fast, skidded straight down the road into the path of Allen, and collided with her in the eastbound lane. Cox made timely exceptions to the failure of the trial court to give her requests to charge on OCGA §§ 40-6-202 and 40-6-390(a) and significance of a plea of guilty to a traffic citation.

1. Cox contends that the trial court erred in failing to give her request to charge on OCGA § 40-6-390(a), reckless driving. We do not agree.

Request to Charge No. 7 was not given, which read:

I charge you, members of the jury, that Section 40-6-390(a) of the Official Code of Georgia, which was in full force and effect on the day and at the time and place of the incident giving rise to this suit, provides in pertinent part as follows: (a) Any person who drives any vehicle in reckless disregard for the safety of persons or property commits the offense of reckless driving. In this connection, I charge you that if you find, as contended by the plaintiff, that the defendant violated this Code section, this would constitute negligence as a matter of law on the part of said defendant.

In this request to charge, the charge itself did not define the specific conduct that constituted reckless disregard for the safety of persons or property or point to specific conduct that was reckless under the facts and circumstances of this case. "However, as defined in OCGA § 40-6-390(a), reckless driving requires proof of a specific act which evidences a `reckless disregard for the safety of persons or property....'" (Emphasis omitted.) Kirkland v. State, 206 Ga.App. 27, 33(17), 424 S.E.2d 638 (1992). See Whiteley v. State, 188 Ga.App. 129, 132-133(5), 372 S.E.2d 296 (1988) (OCGA § 40-6-390(a) requires the specific reckless conduct to be alleged as an essential element of reckless driving). Thus, the written charge as submitted was an incomplete statement of the law. Id. at 132-133, 372 S.E.2d 296. A request to charge must be correct and complete for the trial court to give it. Gates v. Southern R. Co., 118 Ga.App. 201, 204(3)(a), 162 S.E.2d 893 (1968). Thus, the trial court did not err in refusing to give an incomplete request to charge.

2. Cox contends that the trial court erred in not giving her Request to Charge No. 6, regarding OCGA § 40-6-202 and dealing with stopping and obstructing the free passage of vehicles on the highway. We do not agree.

Cox's Request to Charge No. 6 read:

I charge you members of the jury, that § 40-6-202 of the Official Code of Georgia, which was of full force and effect on the day and at the time and place the incident giving rise to this suit, provides in pertinent part as follows: "Outside of a business or residential district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the roadway when it is practicable to stop, park, or so leave such vehicle off the roadway; but in every event, an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles, and a clear view of the stopped vehicles—shall be available from a distance of 200 feet in each direction upon the highway." In this connection, I charge you that should you find as contended by the plaintiff that the defendant Allen violated this code section, this would constitute negligence as a matter of law on the part of said defendant.

This Code section, OCGA § 40-6-202, does not apply to a momentary stopping of a motor vehicle on the highway but applies to situations where the stopping or parking impedes the safe flow of traffic. Stroud v. Doolittle, 213 Ga. 32, 37(2), 96 S.E.2d 876 (1957) (does not apply to a stopped school bus discharging children because all traffic required to stop). Such statute does not apply when a vehicle is forced to a stop for mechanical reasons or in an emergency. Reliance Ins. Co. v. Bridges, 168 Ga.App. 874, 883(6), 311 S.E.2d 193 (1983) (lowboy trailer stuck across both lanes of traffic in attempt to make a U-turn). "[Allen] was [not] stopped, standing or parked as contemplated by the statute, which obviously refers to bringing a vehicle to a halt in a moving lane of traffic rather than to an emergency situation such as the one here." Id.

Under the facts and circumstances of this case, Allen's vehicle momentarily came to a stop diagonally across the road after partially making her left turn in front of the plaintiff and then completed her turn into the eastbound lane prior to the collision. Under such circumstances, this Code section has no application, because it was not adjusted to the evidence. See Reliance Ins. Co. v. Bridges, supra at 883, 311 S.E.2d 193. "An instruction as to law on a material issue[] unauthorized by the evidence is improper." (Citation and punctuation omitted.) Southern Intermodal Logistics v. Coleman, 175 Ga.App. 853, 854(2), 334 S.E.2d 888 (1985).

3. Cox contends that the trial court erred in failing to give her Request to Charge No. 17, regarding the significance of a guilty plea by Allen to a traffic violation. We do not agree.

Request to Charge No. 17 reads: "I charge you that a defendant who is cited for a traffic violation and enters a plea of guilty to said traffic violation, such guilty plea is an admission against interest by the defendant and is evidence of the negligent conduct of the defendant." Request to Charge No. 17 cited as authority for such charge the case of Gaddis v. Skelton, 226 Ga.App. 325, 326, 486 S.E.2d 630 (1997); however, Cox did not give the charge approved in that opinion "as a correct statement of the law." Id. at 327, 486 S.E.2d 630. The complete and correct statement of the law given in that case was

[u]nder Georgia law, in a civil action such as this, evidence that the defendant pled guilty to a traffic charge in a prior proceeding is admissible in evidence and may be considered by you along with all the other evidence as a circumstance to be weighed by you.... Simply because the defendant pled guilty to a traffic charge is not conclusive on the issue of whether or not she in fact violated the traffic laws or was negligent, nor does it preclude her from introducing evidence as to the reasons for entering such a plea.

(Punctuation omitted.) Id. at 326, 486 S.E.2d 630. Where a request to charge is not a complete statement of the law, it is not error for the trial court to refuse to give it to the jury in charge. "A request to charge itself must be correct, legal, apt, even perfect, and precisely adjusted to some principle involved in the case. If any portion of the request is inapt or incorrect, denial of the request is proper." (Citations and punctuation omitted; emphasis in original.) Mattox v. MARTA, 200 Ga.App....