French v. Stephens

• Decision Date: 05 December 1967
• Docket Number: Nos. 1,2,3,No. 43138,43138,s. 1
• Citation: 117 Ga.App. 61,159 S.E.2d 484
• Parties: Earl FRENCH v. Buford R. STEPHENS, by Next Friend
• Court: Georgia Court of Appeals

Page 484

159 S.E.2d 484

117 Ga.App. 61

Earl FRENCH v. Buford R. STEPHENS, by Next Friend.

No. 43138.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Dec. 5, 1967.

Rehearing Denied Dec. 20, 1967.

Certiorari Denied Feb. 13, 1968.

Syllabus by the Court

In determining the question of fact whether the conduct of a person frightened by an immediate occurrence is negligent, the standard to be applied is whether a reasonably prudent person in the same circumstances might have become frightened as this person did not what a reasonably prudent person in the same circumstances would have done. In this case fair and intelligent minds might easily differ, and the question must be decided by the jury.

On this appeal from a judgment for the plaintiff in a personal injury action, the defendant by enumeration of error and argument contends that the trial court erred in overruling her motion for judgment non obstante veredicto, overruling her motion for new trial, overruling her oral motion to dismiss the petition, giving a certain instruction to the jury, and failing to give certain written requests to charge.

The minor plaintiff by his next friend sued the defendant for personal injuries he received when he was a guest passenger in the defendant's family purpose automobile driven by the defendant's wife. The petition alleged that the plaintiff's injuries were caused by the driver's gross negligence in driving the vehicle off the roadway and into a telephone pole, in failing to control the vehicle so as to avoid striking the pole, in failing to apply the brakes, in accelerating the vehicle, and in taking her eyes off the roadway and her hands off the steering wheel at the same time.

The plaintiff's mother gave testimony supporting the allegations of the petition that the plaintiff was five months old and that she was holding him, sitting in the front seat. The plaintiff's brother was also sitting in the front seat between the driver and the plaintiff's mother. The plaintiff's brother began to gag. The driver took her eyes off the roadway and her hands off the steering wheel, reaching for a towel upon which she was sitting, and the automobile slowed down. The plaintiff's mother glanced up and saw that the car was partially off the road and heading towards a telephone pole at an intersection. The plaintiff's mother screamed and the driver glanced up and saw the car bearing down upon the pole. The driver did not drive the car back upon the roadway nor apply the brakes. The plaintiff's mother testified further: When the plaintiff's brother started gasping or 'choking like,' she grabbed for him and the driver grabbed for him at the same time. The driver let go of the steering wheel and was grabbing for the child and trying to pull out the towel that she was sitting on and kept the car going slow; she took her eyes off the road, looking directly at her and the child, and released the steering wheel. The plaintiff's mother screamed when they were about 84 feet from the telephone pole. When the car was heading toward the pole it was pulling to the right; when the witness screamed the driver dropped the towel and panicked, and her foot must have slipped because she hit the gas pedal and the car went fast and 'flew into the telephone pole.' Before the child started choking the driver was driving about 35 miles an hour; when he choked the car was showed down to 10 miles an hour.

The driver testified that the child's choking scared her and she was trying to see about it and get a towel out from under her; the mother's screaming scared her and she looked up and saw that she was going to hit the pole; she tried to hit the brake but hit the accelerator; it all happened suddenly and she didn't remember whether or not it was necessary to apply the brake to avoid the pole.

Smith, Cohen, Ringel, Kohler, Martin & Lowe, Meade Burns, Robert W. Beynart, Sam F. Lowe, Jr., Atlanta, for appellant.

Henritze, Baker & Bailey, Walter M. Henritze, Jr., Atlanta, for appellee.

HALL, Judge.

1. Did the evidence demand a finding that the driver of the automobile was not guilty of gross negligence? We are of the opinion that it did not and that this case is controlled by Shockey v. Baker, 212 Ga. 106, 90 S.E.2d 654; Atlantic Coastline R. Co. v. Daniels, 8 Ga.App. 775, 782, 70 S.E. 203; Simpson v. Brand, 108 Ga.App. 393, 396-399, 133 S.E.2d 393; Smith v. Glenn, 115 Ga.App. 527, 154 S.E.2d 777; Whisnant v. Whisnant, 116 Ga.App. 598, 158 S.E.2d 693. The Whisnant case was decided by this Court only two months ago with two judges dissenting. It held that 'whether or not the defendant (driver) was guilty of gross negligence in throwing up her hands and screaming when confronted with an approaching truck in her lane of traffic was a question of fact for the jury.' In Shockey v. Baker, supra, the lady driver stated that when her car started skidding, a little child was standing in the front seat and the driver let go of the steering wheel and grabbed the child. The Supreme Court held that a question of fact for the jury was presented.

The cases of Tucker v. Andrews, 51 Ga.App. 841, 181 S.E. 673, and Edwards v. Ford, 69 Ga.App. 578, 26 S.E.2d 306, cited by the appellants, are contrary to the ruling of the Supreme Court in Shockey v. Baker, supra, and Judge Powell's opinion in Atlantic Coastline R. Co. v. Daniels, 8 Ga.App. 775, 782, 70 S.E. 203, 206, and must yield accordingly. As Judge Powell says: 'We recognize the principle that if a man has been robbed of his power of judgment by some act not within his control, his resulting lack of judgment becomes a part of the circumstances to be considered; it is in accordance with the rule we have stated, to compare his conduct with the conduct of an ordinarily prudent man under similar circumstances. In the normal course of human activities, which we have in mind as being the noncausal medium through which negligence may effectively operate, sickness, insanity, and other personal infirmities, both mental and physical, have a place. So, if we are testing the conduct of a particular sick man, the question is: How would the standard prudent man have acted if he had been sick just as the person in question was; the test proceeds along similar lines when the conduct of an insance, an infirm, or a frightened person is to be considered. It is true that in the case of a frightened person we have the preliminary question as to whether an ordinarily prudent person would have become so frightened as the particular person was under the circumstances; for we think that it is the part of prudence not to allow one's self to become unduly frightened at causes normally insufficient to produce such an effect. The issue thus made as to what an ordinarily prudent man would have done if he had been circumstanced as the plaintiff was-frightened out of his senses, as he says he was and as the demurrer admits he was-is one that we as judges have no right to decide. It is a matter as to which fair and intelligent minds may easily differ, and is a question of fact. Such questions are for the jury to decide.'

The trial court did not err in overruling the defendant's motion for judgment non obstante veredicto or the motion for new trial, or the defendant's motion to dismiss.

2. The defendant enumerates as error the court's refusal to instruct the jury in accordance with her written request on the law relating to the judgment and duty of care required of the driver of an automobile when confronted with a sudden emergency. The requested instructions on this subject were incomplete and imperfect. Munday v. Brissette, 113 Ga.App. 147, 159, 148 S.E.2d 55. The trial court did not err in failing to give the requested charges. Cates v. Harris, 217 Ga. 801, 802, 125 S.E.2d 649.

3. The defendant contends that the trial court erred in refusing to instruct the jury as the defendant requested in writing, to the effect that if the occurrence in which the plaintiff was injured happened without any negligence on the part of the defendant, or on the part of anyone, it would be an accident in law and the plaintiff would not be entitled to recover. The court in its charge defined the term and instructed the jury as to what constitutes gross...