Flanigan v. Reville
| Decision Date | 22 February 1963 |
| Docket Number | No. 39910,No. 3,39910,3 |
| Citation | 107 Ga.App. 382,130 S.E.2d 258 |
| Parties | Jack E. FLANIGAN v. Jack D. REVILLE |
| Court | Georgia Court of Appeals |
Cail & Benton, Kenneth Cail, Andrew Benton, Savannah, for plaintiff in error.
Adams, Adams & Brennan, Edward T. Brennan, Savannah, for defendant in error.
Syllabus Opinion by the Court
The plaintiff (plaintiff in error) sued the defendant (defendant in error) for personal injuries and property damages he received when the defendant collided with the rear of his automobile as he was making a right turn. The defendant filed an answer and counter-claim for property damages, and the jury returned a verdict for the defendant but did not award him property damages. The plaintiff assigns error on the judgment of the trial court overruling his motion for new trial. Held:
1. Special ground 1 complains that the trial court charged on the law precluding recovery by a person who fails to exercise ordinary care to avoid the consequences of another's negligence, after such negligence has been or reasonably should have been apprehended by him, in such language that the jury was led to apply the charge only to him, the party who claimed damages for personal injuries, and not to the defendant, who claimed property damages only. Giving the jury in this case credit for ordinary intelligence, we do not think they would have so restricted the charge. Savannah, Thunderbolt & Isle of Hope R. Co. v. Beasley, 94 Ga. 142, 146, 21 S.E. 285; Investors' Syndicate v. Thompson, 172 Ga. 203, 158 S.E. 20.
2. Ground 2 complains that the court charged as follows: 'A leading vehicle has no absolute legal position superior to that of one following.' This sentence was included in a portion of the charge on the duties the standard of ordinary care imposes upon drivers of both the leading vehicle and the following vehicle. Neither Code Ann. § 68-1641, prohibiting one motor vehicle from follwoing another 'more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway,' nor Code Ann. § 68-1626, providing that 'In every event spped shall be so controlled as may be necessary to avoid colliding with any person, vehicle, or other conveyance on or entering the highway in compliance with legal requirements and the duty of all persons to use due care. * * *' nor any other provision of law of which we are aware, places an absolute duty on any driver to avoid a collision. All the circumstances and conditions at the time and place inculding the conduct of other drivers, must be taken into account. See Underwood v. Atlanta & West Point R. Co., 106 Ga.App. 467, 127 S.E.2d 318; Hay v. Carter, 94 Ga.App. 382, 384, 94 S.E.2d 755. Thus the sentence complained of was not abstractly incorrect, and as charged by the court in context was not prejudicial to the plaintiff.
3. Ground 3 contends that the manner in which the court charged the principle that an injured party cannot recover if his injury was due to his own negligence, or, if the other party was negligent, the injured party could have discovered such negligence and prevented his injury by the exercise of ordinary care for his own safety, misled the jury to believe that the plaintiff must be free of negligence to recover any portion of his damages. Considering the charge as a whole which included a charge on comparative negligence and apportionment of damages, there is no merit in this contention.
4. In ground 4 the plaintiff complains that, when his witness, a police officer, in response to a question as to what he found in his investigation of the accident, related the statements made to him by the drivers, the trial court sustained an objection and instructed the plaintiff's witness not to testify as to what someone had told him. It appears that the statements of the drivers were a mere narrative of what had happened rather than declarations...
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