Davis v. Laird, 40267
| Decision Date | 01 November 1963 |
| Docket Number | No. 1,No. 40267,40267,1 |
| Citation | 108 Ga.App. 729,134 S.E.2d 467 |
| Parties | Corbin J. DAVIS v. Sam L. LAIRD. . Division |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. The verdict was authorized by the evidence and the general grounds of the motion for a new trial are without merit.
2. (a) Where the plaintiff, by a request to charge, raised the issue of whether or not he had such control over the automobile that the driver's negligence might be imputed to him, he is estopped to take the inconsistent position in his motion for a new trial that the charge based upon his request was not supported by the evidence.
(b) There being no evidence of the plaintiff's contributory negligence, charges to the effect that the plaintiff was required by law to have been in the exercise of ordiary care at the time of the collision were harmful error.
3. The charge, that the plaintiff's recovery for injuries depended upon the defendant's negligence, if any, being the direct and proximate cause of the injuries, was not subject to the objection that it eliminated the possibility of the defendant's concurring or contributory negligence since this issue was not raised by the pleadings.
Corbin J. Davis sued Sam Leon Laird to recover damages for alleged personal injuries arising out of an automobile collision between the automobile in which the plaintiff was a guest passenger and that of the The petition alleged substantially as follows: That the plaintiff was riding in the left-hand rear seat of an automobile being driven by his son-in-law in a westerly direction on State Highway 12 in DeKalb County, at an approximate speed of 35 m. p. h.; that as the automobile approached an intersection, the driver of a truck in front of the automobile slowed down and signaled for a right turn; that the automobile driver slowed down to approximately 5 m. p. h., whereupon the defendant's automobile, which was immediately behind the vehicle in which the plaintiff was a passenger, suddenly and without any warning struck the plaintiff's vehicle, causing certain alleged permanent injuries and disability. The alleged particulars of the defendant's negligence are as follows: Following too closely and not having his vehicle under such control as to be able to stop it in an emergency in violation of Code Ann. § 68-1641(a), constituting negligence per se; failing to turn his vehicle to the right or left to avoid the collision; failing to apply his brakes to avoid the collision; failing to sound a horn or other warning; and striking the vehicle in which the plaintiff was a passenger.
defendant, allegedly caused by the defendant's negligence.
The defendant filed an answer and the case proceeded to trial before a jury, resulting in a verdict and judgment for the defendant. The plaintiff filed a motion for new trial on the three usual general grounds, which he later amended by adding seven special grounds. The motion as amended was overruled, to which judgment the plaintiff excepts.
Bradford & Maddox, Atlanta, for plaintiff in error.
Powell, Goldstein, Frazer & Murphy, Atlanta, B. Hugh Burgess, Decatur, C. B. Rogers, Atlanta, for defendant in error.
1. As to the general grounds of the motion for a new trial, the verdict for the defendant was supported by the following evidence: the pickup truck in front of the plaintiff's vehicle pulled off the highway on the right-hand side, then, without warning, pulled partially back onto the road, paralleling the automobile with its left-hand wheels just on the pavement for a short distance; the vehicles were in a line of traffic moving about 40 m. p. h. in a 45 m. p. h. speed zone; there was oncoming traffic in the opposite lane of the two lane highway; the vehicles had just topped a hill and rounded a curve; the plaintiff's son-in-law honked his horn and applied his brakes upon seeing the truck pull back onto the pavement and that he was struck from behind by the defendant's automobile just as he had passed the slowly moving truck to his right; the defendant testified that he was maintaining the same speed (about 40 m. p. h.) and interval (1 1/2-2 1/2 car lengths) as the other vehicles, that he saw no stop signal--either hand or mechanical--from the plaintiff's vehicle, that he did not have time to give any warning signal, that he did not turn to the left because of the oncoming traffic, that he did not turn to the right because he was just trying to stop his automobile, and that he applied his brakes and could have stopped within a distance of an additional foot or two. Although he testified that he had not seen the pickup truck, according to the testimony of those in the automobile with the plaintiff the truck was alongside the right-hand side of the road, preventing the defendant from turning to his right to avoid the collision. The investigating police made no charges against any of the three drivers involved. Concerning the evidence as to the plaintiff's alleged injuries, it showed that although he was examined by seven doctors and a psychiatrist, he called none of them as his witness; that the testimony of two chiropractors called by the plaintiff showed that their diagnoses and treatments were conflicting, one of them having diagnosed and treated the trouble as having been caused by a calcium deficiency; that the testimony of the doctors who had seen the plaintiff The above evidence would have authorized a verdict for the defendant on either of two grounds, namely: that the defendant was confronted with an emergency situation and exercised ordinary care under the circumstances, or that the plaintiff failed to prove that his alleged injuries were caused by any negligence of the defendant. Flanigan v. Reville, 107 Ga.App. 382(2), 130 S.E.2d 258 and cit. The general grounds of the motion are without merit....
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