Everett v. Clegg

• Decision Date: 09 April 1957
• Docket Number: No. 19615,19615
• Parties: Clark H. EVERETT, Next Friend, v. Mary G. CLEGG.
• Court: Georgia Supreme Court

Page 689

97 S.E.2d 689

213 Ga. 168

Clark H. EVERETT, Next Friend, v. Mary G. CLEGG.

No. 19615.

Supreme Court of Georgia.

April 9, 1957.

Syllabus by the Court.

For the reasons set out in the opinion, the Court of Appeals erred in affirming the judgment of the trial court denying a new trial.

Maddox & Maddox, Rome, for plaintiff in error.

Matthews, Maddox, Walton & Smith, Rome, for defendant in error.

ALMAND, Justice.

Parnick Everett, a minor, through his father as next friend, filed his suit to recover damages for personal injuries against Mary G. Clegg. The father also filed suit to recover damages for loss of his son's services, etc. The action grew out of a collision between the motorcycle operated by the son and an automobile operated by the defendant at a street intersection in the City of Rome. In both suits, it was charged that the proximate cause of the collision was due to several specific acts of negligence on the part of the defendant. The defendant, in her answer to the son's suit and in her answer and countersuit to the father's suit, asserted that the sole and proximate cause of the collision was due to the negligence of the son in operating the motorcycle. The two suits were tried together and resulted in a verdict for the defendant in both cases. The motion for a new trial filed in the son's case was denied, and this judgment was affirmed by the Court of Appeals. Everett v. Clegg, 94 Ga.App. 725, 96 S.E.2d 382, 387. The son's application to this court for writ of certiorari, assigning five alleged errors on the rulings of the Court of Appeals, was granted.

1. In his motion for a new trial, the petitioner assigned error on this charge of the court to the jury: 'If you should find that Mr. Everett's son was in peril by negligence on the part of the Defendant, Miss Clegg, and that he had two ways of conduct open, one safe and the other obviously dangerous, it was his duty to adopt that course which was safe. If he failed to adopt the safe course and was injured by adopting the obviously dangerous course, he cannot recover in this action.' In approving this charge, the Court of Appeals in its opinion said that, from the evidence, 'the jury would have been authorized to find that he created an emergency and of the two [courses] open to him chose the perilous rather than the safe course, and the trial court did not err in charging upon these two issues.'

This instruction stated an incorrect principle of law. The charge placed an absolute duty upon the petitioner to select the safe course or else be barred from a recovery, when placed in a position of peril by the negligence of the defendant, without regard as to whether the petitioner was, at the time and in the light of the surrounding circumstances as they appeared to him, acting as an ordinarily prudent person. When a driver of a motor vehicle is confronted with a sudden emergency caused by the negligence of another, he is not to be barred from a recovery because he exercised bad judgment under the circumstances, but in such emergency is only charged with the duty of exercising ordinary care and diligence under the circumstances. Pickering v. Wagnon, 91 Ga.App. 610, 613, 86 S.E.2d 621; Cone v. Davis, 66 Ga.App. 229, 17 S.E.2d 849; Whitfield v. Wheeler, 76 Ga.App. 857, 860, 47 S.E.2d 658.

In White v. Knapp, 31 Ga.App. 344, 120 S.E. 796, 797, the following charge was held to be correct: 'The court charges you in that connection, that if you should believe from the evidence that plaintiff was negligently and suddenly put in a place of peril by the defendant, with insufficient time to consider all the facts and circumstances which surrounded him, the law wouldn't require of him the same degree of care and caution that it would a person who had ample time for the exercise of his judgment. In other words, when a person is suddenly put in the position of peril by the negligence of another, and where, under the circumstances, the emergency is so great that they have to act without having time to think, then a person confronted with such emergency is not held to as strict accountability as a person who has ample time to consider the circumstances and the situation.' A driver of a motor vehicle, when confronted with a sudden peril not arising from any fault of his own, will not be held negligent where he exercises the right to take care of himself in order to avoid injury, provided he acts with such care as an ordinarily prudent person would exercise. Cone v. Davis, supra; Gatewood v. Vaughn, 86 Ga.App. 823, 825, 72 S.E.2d 728

The statement in the opinion in Atlantic Coast Line Railroad Co. v. O'Neill, 127 Ga. 685, 690, 56 S.E. 986, 988, that 'There does not seem to be any error, as against the defendant, in the instructions complained of which declared that it is the duty of a party imperiled by another's negligence, where two ways of...