Daves v. Davidson, A97A0941

• Decision Date: 17 September 1997
• Docket Number: No. A97A0941,A97A0941
• Citation: 228 Ga.App. 542,492 S.E.2d 304
• Parties: , 97 FCDR 3618 DAVES v. DAVIDSON.
• Court: Georgia Court of Appeals

Page 304

492 S.E.2d 304

228 Ga.App. 542, 97 FCDR 3618

DAVES v. DAVIDSON.

No. A97A0941.

Court of Appeals of Georgia.

Sept. 17, 1997.

Raymond C. Mayer, Atlanta, for appellant.

Downey & Cleveland, Russell B. Davis, Marietta, for appellee.

McMURRAY, Presiding Judge.

Joseph Gibson Daves filed a personal injury action against Terri Ann Davidson, alleging Davidson negligently drove her car into the rear of Daves' pickup truck. The evidence adduced at a jury trial reveals that Davidson's car collided into the rear of Daves' truck on a rainy afternoon in May 1992. Davidson testified that her rain-soaked shoe caused her foot to slip off the brake pedal, propelling her car into Daves' truck at about five mph. Davidson specifically described the collision during the following cross-examination: "We were all stopped at the light at Hargrove and Cobb Parkway in a long line of cars, and as you know or as sometimes it does occur, all of the cars were one right behind the other with very little space in between each other and I couldn't see the light. So, I was watching the car in front of me which was Mr. Daves' truck. The light must have turned green because we started to proceed again forward and then at that time, I saw that he had begun to stop and had stopped and I was doing the same thing and at that time when I went to apply my brake and I was in first gear because we were all had just started up and the light had turned--the light must have turned from green to red at that time when he began to stop. I went to apply my brake and my foot slipped off the brake. It did not hit the accelerator."

The jury returned a verdict for Davidson, rejecting Daves' negligence claim or finding that Daves' neck injuries arose from a subsequent unrelated automobile collision. This appeal followed. Held:

1. The trial court did not err in denying Daves' motion for directed verdict. Whether or not the following or approaching from the rear vehicle in a rear-end collision case has exercised ordinary care to avoid the collision is usually a jury question. Cagle v. Ameagle Contractors, 209 Ga.App. 712, 434 S.E.2d 546. " 'Just how close to a vehicle in the lead a following vehicle, ought, in the exercise of ordinary care, be driven, just what precautions a driver of such a vehicle must in the exercise of ordinary care take to avoid colliding with a leading vehicle which slows, stops, or swerves in front of him, ... may not be laid down in any hard and fast or general rule. In each case except when reasonable minds may not differ, what due care required, and whether it was exercised, is for the jury.' " Atlanta Coca-Cola Bottling Co. v. Jones, 236 Ga. 448, 450, 224 S.E.2d 25. Davidson's testimony that her car struck Daves' truck because her rain-soaked foot slipped off the brake pedal raises a jury question as to whether Davidson exercised ordinary care in operating her car at the time of the collision. See Stubbs v. Tri-State Culvert Corp., 177 Ga.App. 113(1), 338 S.E.2d 449; Collins v. McGlamory, 152 Ga.App. 114, 262 S.E.2d 262.

The rear-end collision cases Daves cites in support of his motion for directed verdict, Nail v. Green, 147 Ga.App. 660, 249 S.E.2d 666; Walls v. Parker, 146 Ga.App. 882(1), 247 S.E.2d 556; and Johnson v. Curenton, 127 Ga.App. 687, 688-689, 195 S.E.2d 279, are not controlling in the case sub judice because the defendant drivers in these cases either admitted they were driving carelessly (not keeping a proper lookout) or gave no good reason for the rear-end collision. Davidson's excuse in the case sub judice was that her foot slipped off the brake pedal because of rainy weather conditions. This explanation, along with proof that Davidson was fully attentive to her driving responsibilities at the time of the collision and that she did everything possible to avoid the collision, authorized the jury's finding that Davidson was not negligently operating her car at the time of the collision.

2. Daves contends the trial court erred in failing to give his request to charge based on OCGA § 24-4-22, which requested as follows: "Where a party has evidence by...