Fouts v. Builders Transport, Inc.

• Decision Date: 21 August 1996
• Docket Number: A96A0936,Nos. A96A0935,s. A96A0935
• Citation: 474 S.E.2d 746,222 Ga.App. 568
• Parties: FOUTS et al. v. BUILDERS TRANSPORT, INC. et al.; and vice versa.
• Court: Georgia Court of Appeals

Page 746

474 S.E.2d 746

222 Ga.App. 568

FOUTS et al. v. BUILDERS TRANSPORT, INC. et al.; and vice versa.

Nos. A96A0935, A96A0936.

Court of Appeals of Georgia.

Aug. 21, 1996.

Certiorari Denied Nov. 22, 1996.

Coppedge, Goddard & Leman, Warren N. Coppedge, Jr., James A. Hammontree, Dalton, for appellants.

Dennis, Corry, Porter & Gray, William E. Gray, II, Stephanie F. Goff, Jacob S. Fisher, Atlanta, for appellees.

RUFFIN, Judge.

These cross-appeals stem from a June 15, 1990 automobile collision involving a mini-van driven by Gracie Fouts and a tractor-trailer truck owned by Builders Transport, Inc. ("Builders") and driven by Earnest W. Brinser. Gracie Fouts sued for medical expenses, lost wages, loss of ability to work, and past and future physical and mental pain and suffering, and her husband, Bartow Fouts, sued for loss of consortium. The jury returned a $37,779 verdict in favor of Gracie Fouts for her personal injuries, but returned a verdict in favor of Builders and Brinser for Bartow Fouts' loss of consortium claim. Subsequently, the trial court amended the judgment to reduce the verdict by $5,000, which was the amount of no-fault benefits paid to Gracie Fouts by her insurance carrier. In Case No. A96A0935, the Fouts appeal evidentiary rulings, jury charges and the no-fault setoff. In Case No. A96A0936, Builders and Brinser cross-appeal, citing errors in the admission of evidence, jury charges, and denial of their motions for directed verdict. For reasons which follow, we reverse Case No. A96A0935 and affirm Case No. A96A0936.

The collision occurred at the intersection of Dietz Road and State Route 2. Gracie Fouts was stopped at a red traffic signal in the southbound lane of Dietz Road. Brinser, driving westbound on State Route 2, approached the Dietz Road intersection as the traffic light changed from green to yellow. Brinser applied his brakes, but failed to stop prior to reaching the intersection. There was no dispute that at the time of the collision the traffic signal was red for Brinser and green for Gracie Fouts. Another vehicle in the lane to the left of Gracie Fouts was also stopped for the traffic signal. According to an eyewitness, the vehicle to the left of Gracie Fouts began to pull into the intersection when the light turned green for Dietz Road. After pulling out two or three feet, this vehicle then stopped, apparently having seen the tractor-trailer coming into the intersection. After the vehicle to the left of Gracie Fouts stopped, however, Gracie Fouts began to move into the intersection, and she collided with Brinser's tractor-trailer. Gracie Fouts testified that she saw the vehicle to her left begin to pull into the intersection, at which point she began to move into the intersection. She further testified she was not aware of other accidents at the intersection and that she could not recall looking up State Route 2, in the direction Brinser was traveling, prior to entering the intersection.

Case No. A96A0935

1. The Fouts correctly assert that the trial court's jury instruction on the last clear chance doctrine warrants a new trial. The trial court charged the jury as follows: "I charge you that a person is under an obligation to use ordinary care to avoid injuring another after finding him in a dangerous place regardless of how he gets there or she gets there and is liable for his failure or her failure to do so. This is known as the last clear chance rule." For reasons which follow, we find that this charge, while properly given in relation to Brinser's actions, did not apply to the Fouts based on the evidence in the record, and therefore, the language charged was harmful and may have misled the jury.

Contrary to Builders and Brinser's argument, the last clear chance rule is not strictly related to liability, but is also related to damages when applied within the context of the doctrine of comparative negligence. See Seaboard Coast Line R. Co. v. Daugherty, 118 Ga.App. 518, 522(4), 164 S.E.2d 269 (1968). In Daugherty, a case involving the Federal Employer's Liability Act ("FELA"), this Court held that "the last clear chance rule is obsolete except insofar as it defines one variety of negligence and is merged into the rule for apportioning damages. [Cit.] 'The doctrine of contributory negligence and the rule of last clear chance are involved in, and vanish as such into, the principle of comparative negligence and apportionment of damages.' [Cit.]" Id. Although the holding in Daugherty applied only to cases under the FELA, which adopts the comparative negligence standard, we believe that this reasoning is equally applicable to cases under Georgia's comparative negligence statute, OCGA § 51-11-7, and that the last clear chance rule necessarily affects damages when coupled with this statute. Thus, the jury verdict in favor of Gracie Fouts does not preclude the Fouts from arguing this issue.

The last clear chance rule contains two essential elements: (1) party number one, by his own negligence, "must have put himself in a position of peril from which he could not extricate himself (but the [second party] presumably could have extricated him)" and (2) party number two "must have knowledge and appreciation of the injured person's peril in time to avoid the injury." (Citations and punctuation omitted.) Stallings v. Cuttino, 205 Ga.App. 581, 583, 422 S.E.2d 921 (1992). The last clear chance doctrine "cuts both ways and can be applied to prevent any recovery by a plaintiff who could have extricated [herself] from peril and failed to do so." Daugherty, supra at 522, 164 S.E.2d 269.

While the Fouts contend Brinser could not have avoided the collision due to brake failure, the jury was authorized to conclude, based on the evidence at trial, that Brinser's brakes were working at the time of the collision and that Brinser could have stopped his tractor-trailer in time to avoid entering the intersection and colliding with Gracie Fouts' van. ¹ There was no dispute that Brinser was at least 75 feet from the intersection when the light changed from green to yellow. According to the investigating officer, Brinser's tractor-trailer left skid marks on both the right and left side measuring 150 feet prior to impact and 60 feet after impact. These skid marks indicated that the vehicle's brakes were working to some degree. Brinser testified he previously had no problem with the brakes, and his brakes were working when he started down the hill toward the intersection. In addition, an eyewitness testified she saw the truck's brake lights come on when the light turned yellow. This eyewitness further testified that, based on her experience and knowledge of the intersection, Brinser could have stopped the truck prior to entering the intersection if his brakes were working properly. This testimony was reinforced by the testimony of Brinser and the DOT signal engineer regarding the distance Brinser's vehicle traveled, the speed of his vehicle, and the timing of the lights.

"It is well established that an instruction is not abstract nor inapplicable where there is some evidence, however slight, on which to predicate it. [Cit.] To justify a charge on a given subject, it is not necessary there should be overwhelming evidence going to that point, it is enough if there be something from which a legitimate process of reasoning can be carried on in respect to it. [Cit.]" Sapp v. Johnson, 184 Ga.App. 603, 605(2), 362 S.E.2d 82 (1987). Based on the above evidence, we find that a jury was authorized to conclude that Gracie Fouts placed herself in a perilous position and Brinser knew and appreciated her peril in time to avoid the injury. Thus, while we are not sure why Brinser and Builders would request such a charge which, if properly given, would benefit the Fouts, a charge on last clear chance with respect to the liability of Brinser and Builders was warranted by the evidence. See Hurst v. J.P. Colley Contractors, 167 Ga.App. 56(1), 306 S.E.2d 54 (1983).

However, the evidence in the present case is undisputed that Gracie Fouts did not see or hear Brinser's tractor-trailer prior to the collision. Thus, she did not have knowledge and appreciation of Brinser's peril in time to avoid the injury. The last clear chance doctrine "does not apply to a 'should know' or 'should have known' situation." (Citations and punctuation omitted.) Stallings, supra at 583, 422 S.E.2d 921. Accordingly, the trial court incorrectly determined that last clear chance was applicable to both parties, and "the instruction as given may have misled the jury into believing that the doctrine could be applied, not to hold [Brinser and Builders] liable even if the [Fouts] were negligent, but to find that [Gracie Fouts'] alleged negligence proximately caused the accident.... [T]he jurors could have construed the last clear chance instruction as meaning that if [Gracie Fouts] had the last clear chance to remove [her vehicle from the intersection], and failed to do so, then that failure, rather than any possible negligence by [Brinser], proximately caused [the Fouts'] injuries. That is an incorrect application of the last clear chance doctrine." Townsend v Wright, 220 Ga.App. 324, 326(1), 469 S.E.2d 281 (1996).

Because the instruction as given may have misled the jury and we do not know what effect the charge had upon the application of comparative negligence, the court's error in giving the instruction in the language charged was harmful, and a new trial is required. Id. See also Richardson v. Coker, 78 Ga.App. 209, 213(1), 50 S.E.2d 781 (1948).

Since the Fouts' remaining enumerations of error may recur upon retrial, we will also address the remaining enumerations.

2. The Fouts correctly assert the trial court erred in giving a charge regarding the lack of an absolute duty to have one's vehicle under control in order to avoid a collision. The charge as given stated, "the law of this state does not impose upon the driver of a motor...