Gurin v. Harris

• Court: Georgia Court of Appeals
• Writing for the Court: EVANS; HALL, P.J., and CLARK
• Citation: Gurin v. Harris, 200 S.E.2d 368, 129 Ga.App. 561 (Ga. App. 1973)
• Decision Date: 05 September 1973
• Docket Number: No. 48327,No. 2,48327,2
• Parties: H. G. GURIN et al. v. Richard HARRIS et al

Page 368

200 S.E.2d 368

129 Ga.App. 561

H. G. GURIN et al. v. Richard HARRIS et al.

No. 48327.

Court of Appeals of Georgia, Division No. 2.

Sept. 5, 1973.

Neely, Freeman & Hawkins, Paul M. Hawkins, William Q. Bird, Atlanta, for appellants.

Dennis & Fain, Robert E. Corry, Jr., Atlanta, for appellees.

Syllabus Opinion by the Court

EVANS, Judge.

Gurin sued Mr. and Mrs. Harris for personal injuries arising out of a collision between his motor vehicle and a car driven by Mrs. Harris. Mr. Harris was sued under the family purpose car doctrine. Mrs. Gurin also sued Mr. and Mrs. Harris for loss of consortium of her husband arising out of the same collision.

Defendants answered, and denied the material averments of the complaints, and alleged the proximate cause of the incident was the negligence of plaintiff Gurin; that his negligence was equal to or greater than any negligence attributable to the defendants and that in the exercise of ordinary care for his own safety, plaintiff could have avoided the collision.

Both cases were consolidated for trial, and verdict and judgment were rendered in favor of the defendants. Plaintiffs appeal. Held:

1. The collision occurred in a heavily congested area of metropolitan Atlanta when defendant driver, while traveling west, crossed from the inner westbound lane (6 lanes-North Druid Hills Road) in front of stopped traffic in two inner east-bound lanes, to enter a service station. Plaintiff, while traveling east in the outside east-bound lane, allegedly was unable to stop or observe defendant crossing the highway, and struck her car on the right side as she entered to cross his traffic lane. Apparently, based on the evidence alone, since there were no pleadings raising the defense of accident, the court charged that accident was an event which occurred without being caused by the failure of either party to exercise the duty of care required by law. But under the above situation said collision could only occur as a result of the negligence of one or the other or both of the parties. The evidence is devoid of any question of accident, and the court erroneously gave the defendants a defense which they did not request in their pleadings, nor by written request to charge, nor was it authorized by the evidence. See Morrow v. Southeastern Stages, Inc., 68 Ga.App. 142(1), 22 S.E.2d 336; Ault v. Whittemore, 73 Ga.App. 16(4), 35 S.E.2d 530; Atlantic Coast Line R. Co. v. Jones, 132 Ga. 189, 196, 63 S.E. 834. In the Jones case, supra, (p. 196, 63 S.E. p. 838), we find the following: 'There was no evidence from which the jury could have found that the collision was an unavoidable accident. Somebody must have been at fault, and the question for the jury to determine was, who was guilty of negligence.' That opinion goes on to hold that the jury's attention should not be distracted by the consideration of an impossible theory of accident.

Counsel for the defendant has cited several authorities, such as Trammell v. Williams, 97 Ga.App. 31(2), 101 S.E.2d 887; Caldwell v. Knight, 94 Ga.App. 827, 828, 96 S.E.2d 331, and Smith v. Poteet, 127 Ga.App. 735, 742, 195 S.E.2d 213, citing Pickering v. Wagnon, 91 Ga.App. 610, 86 S.E.2d 621; Boatright v. Sosebee, 108 Ga.App. 19, 132 S.E.2d 155, and Teppenpaw v. Blaylock, 126 Ga.App. 576, 579, 191 S.E.2d 466, which seemingly hold that an accident may be a happening which, although not wholly free from negligence, does not result from a failure of the parties to the case to exercise ordinary care in the situation. But in this case the collision...