Edwards v. Wilson

Decision Date12 January 1988
Docket NumberNo. 75264,75264
Citation185 Ga.App. 514,364 S.E.2d 642
PartiesEDWARDS v. WILSON et al.
CourtGeorgia Court of Appeals

Richard L. Collier, Griffin, for appellant.

Richard W. Hendrix, Lafayette, for appellees.

CARLEY, Judge.

Appellant-defendant in this negligence action appeals from the judgment that was entered in favor of appellee-plaintiffs Mr. and Mrs. Michael Wilson after a bench trial. The evidence, although not without dispute, would have authorized the trial court, sitting as the trier of fact, to make the following findings: Appellees purchased "pit passes" for appellant's automobile race track. While making their way to the track entrance, appellees encountered one of appellant's employees who was engaged in directing both vehicular and pedestrian traffic. Appellant's employee directed appellees to stop and they did. Appellant's employee then motioned to the driver of a trailer which was located behind appellees and several feet to their right to move forward. The driver of the trailer complied with the motion of appellant's employee and, as the consequence, the trailer struck appellees from the rear. Based upon these and additional findings, the trial court entered the judgment for appellees from which appellant brings this appeal.

1. Several of appellant's enumerations relate to the findings of fact which were made by the trial court. "When a trial court sits as both judge and jury, the court's findings of fact are binding on appeal, and, unless wholly unsupported or clearly erroneous, will not afford a basis for reversal. [Cits.] On appeal, this court must not substitute its judgment for that exercised by the trial court when there is some support for the trial court's conclusion. Our duty is not to weigh evidence de novo, but to merely determine if there is any evidence which supports the judgment below. [Cit.] Even in the face of conflicting evidence, the trial court's judgment will be upheld as long as there is 'any evidence' to uphold the lower court's determination. [Cit.]" Cessna Fin. Corp. v. Design Engineering, 176 Ga.App. 206, 208, 335 S.E.2d 625 (1985).

There was sufficient evidence to authorize the trial court's finding that appellant's employee, having first undertaken to direct appellees to stop, then directed the trailer to move forward without determining whether that movement of the trailer could be made in reasonable safety. Accordingly, the trial court did not err in failing to find that appellees were barred from recovering based upon their alleged "equal or superior knowledge" of the danger presented by the trailer. " 'One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm ... or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.' [Cit.] 'An act may be negligent if the actor intends to prevent, or realizes or should realize that it is likely to prevent, another or a third person from taking action which the actor realizes or should realize is necessary for the aid or protection of the other.' [Cit.] Hence, if a person signals another that the way is safe for the other's vehicle to pass, or to come in front of him, he should realize that his voluntary action may cause reliance upon his signal which causes the other person to forego reliance upon his own lookout, which is necessary for the aid or protection of the person signaled." (Emphasis in original.) Cunningham v. Nat. Svc. Indus., 174 Ga.App. 832, 835, 331 S.E.2d 899 (1985). The trial court was authorized to find that, by his direction to appellees to stop, appellant's employee had thereby induced appellees to rely upon his safe direction of traffic rather than upon their own lookout. It follows that the trial court was authorized to find appellant liable for his employee's negligence under a respondeat superior theory.

We need not address the further contention that the trial court erred in finding that appellees were also authorized to recover against appellant under a direct negligence theory. Any possible error in the determination that appellant was directly liable would be rendered harmless by the evidentiary support for the finding that appellant was vicariously liable for appellees' injuries.

2. The evidence authorized a finding that all of the special damages which were sought by appellee Mr. Wilson and awarded by the trial court were attributable to the physical injury here at issue rather than to the misconduct or poor judgment of appellee Mr. Wilson himself. Accordingly, the trial court did not err in failing to find that appellee Mr. Wilson had not mitigated his damage.

3. Appellant enumerates as error the failure of the trial court to find that appellees had contractually waived their right to sue. It is undisputed that the tickets purchased by appellees indicated that "[b]y acquiring and using this Pit Pass, [they] waive[d] all claims for personal injury and property damage against [appellant], and [would] hold [appellant] harmless in the event of any personal injury to [themselves] on any damage or injury to [their] property occasioned while in attendance at the race meet." (Emphasis supplied.) However, it is undisputed that appellees never used their "pit pass"...

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6 cases
  • Blackmon v. Pena, A17A1500
    • United States
    • Georgia Court of Appeals
    • 7 Marzo 2018
    ...evidence to uphold the lower court’s determination .(Citations and punctuation omitted; emphasis supplied.) Edwards v. Wilson , 185 Ga. App. 514, 515 (1), 364 S.E.2d 642 (1988) (citing Cessna Finance Corp. v. Design Eng. & Constr. Intl. , 176 Ga. App. 206, 208, 335 S.E.2d 625 (1985) ). In t......
  • Leventhal v. Seiter
    • United States
    • Georgia Court of Appeals
    • 12 Marzo 1993
    ...will be upheld as long as there is "any evidence" to uphold the lower court's determination. (Cit.)' [Cit.]" Edwards v. Wilson, 185 Ga.App. 514, 515(1), 364 S.E.2d 642 (1988). In this case, there is evidence in the record to show that the appellees, in good faith, complied with the terms of......
  • Price v. Age, Ltd.
    • United States
    • Georgia Court of Appeals
    • 2 Enero 1990
    ...will be upheld as long as there is "any evidence" to uphold the lower court's determination. (Cit.)' [Cit.]" Edwards v. Wilson, 185 Ga.App. 514, 515(1), 364 S.E.2d 642 (1988). We find no error in the trial court's 3. We find no merit in appellant's contention that the trial court erred by a......
  • Jennings Enterprises, Inc. v. Carte, s. A96A2532
    • United States
    • Georgia Court of Appeals
    • 27 Enero 1997
    ...as long as there is 'any evidence' to uphold the lower court's determination." (Citations and punctuation omitted.) Edwards v. Wilson, 185 Ga.App. 514, 515(1), 364 S.E.2d 642. Plaintiff refers to evidence that would have authorized a finding of bad faith on the part of defendants. But the t......
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