Hanley v. Ford Motor Co.

• Court: Georgia Court of Appeals
• Writing for the Court: STOLZ; BELL, C.J., and EVANS
• Citation: Hanley v. Ford Motor Co., 196 S.E.2d 451, 128 Ga.App. 307 (Ga. App. 1973)
• Decision Date: 30 January 1973
• Docket Number: No. 47638,No. 1,47638,1
• Parties: Mrs. Rozell HANLEY v. FORD MOTOR COMPANY et al

Page 451

196 S.E.2d 451

128 Ga.App. 307

Mrs. Rozell HANLEY v. FORD MOTOR COMPANY et al.

No. 47638.

Court of Appeals of Georgia, Division No. 1.

Jan. 30, 1973.

Rehearing Denied Feb. 28, 1973.

Robinson, Buice, Harben & Strickland, Sam S. Harben, Jr., Gainesville, Davis & Davidson, Jack S. Davidson, Jefferson, James L. Brooks, Commerce, for appellant.

Hansell, Post, Brandon & Dorsey, Hugh E. Wright, Atlanta, E. Freeman Leverett, Elberton, for appellees.

Syllabus Opinion by the Court

STOLZ, Judge.

Mrs. Rozell Hanley sued Donny Pritchett and Ford Motor Company for the wrongful death of her 17-year-old son, Ronny Hanley, who was a guest passenger in a 1970 Ford 'Boss' Mustang automobile owned by the defendant Pritchett and allegedly negligently designed and constructed by defendant Ford. After a six-day trial, the jury returned a verdict for both defendants. Plaintiff appeals, enumerating as error three portions of the trial judge's charge to the jury. Held:

1. The first charge complained of is as follows: 'I charge you this principle with reference to the plaintiff's deceased son, Ronny Hanley. If you find from the evidence there was something present at the time and place of the event under investigation, which would have caused an ordinarily prudent person to reasonably apprehend the probability of danger, then it was the duty of plaintiff's son to take such steps as an ordinarily prudent person would have taken to ascertain whether such danger existed as well as to avoid the consequences of the same after its existence is ascertained. It's the duty of all persons to use due care for their own safety and to use their natural senses to discover obvious or known dangers. If plaintiff's son, by the exercise of ordinary care, could have avoided the consequences to himself, then plaintiff could not recover in this case of either defendant.'

(a) The evidence regarding defendant Pritchett's driving at the time of the accident, was highly conflicting. Defendant Pritchett testified that he was traveling between 40 and 60 mph (on cross examination) and only about 45 mph (on direct examination) just before the accident when he saw fire up in front of the windshield coming up from under the hood; that he lost control of the car, which then left the road, overturned, and subsequently caught fire. Pritchett's date, who was occupying the right front seat of the car, testified substantially as did Pritchett. She did not know the speed of the car definitely, but stated that she did not remember anything wrong with its operation and that Pritchett was driving properly. As opposed to this, the physical evidence showed that the automobile made 144 feet of skid marks on the road and traveled 198 feet off the road into a field before turning over and coming to rest. In the process of so doing, the automobile tore down 5 fence posts and 54 feet of wire fencing. Based on these facts, the investigating officer, a member of the Georgia State Patrol, and two experts estimated the speed of the car to have been in excess of 70 mph. Obviously, if the direct testimony was correct, the plaintiff's son was under no duty to warn. If the opinion evidence is correct, it becomes incumbent upon the defendants to show that the driver's negligent conduct had existed for a sufficient length of time for the plaintiff's son to have notice thereof before any duty would devolve upon him to warn the driver, urge him to slow down, or take affirmative action. The record is absolutely silent as to any improper or negligent driving by defendant Pritchett prior to the instant immediately preceding the accident. The uncontroverted evidence shows that the plaintiff's son and another young man were in the back seat and that they were talking to Pritchett's date immediately prior to the accident. There is nothing in the record that suggests that Pritchett was driving improperly as early as 30 seconds prior to losing control of the car (for whatever reason) or that the plaintiff's son had any notice or opportunity to become aware of such conduct so as to be able to caution Pritchett about his driving. In Bellamy v. Georgia Power Co., 67 Ga.App. 569, 570, 21 S.E.2d 294, where exception was taken to a charge very similar to the one complained of herein, this court said, 'There was no evidence that the plaintiff...