Harrison v. Ellis

• Decision Date: 15 March 1991
• Docket Number: No. A90A2358,A90A2358
• Citation: 199 Ga.App. 199,404 S.E.2d 348
• Parties: HARRISON v. ELLIS.
• Court: Georgia Court of Appeals

Page 348

404 S.E.2d 348

199 Ga.App. 199

HARRISON v. ELLIS.

No. A90A2358.

Court of Appeals of Georgia.

March 15, 1991.

C. Lawrence Jewett, Jr., Atlanta, for appellant.

Bovis, Kyle & Burch, Charles M. McDaniel, Jr., Atlanta, for appellee.

SOGNIER, Chief Judge.

Shannon Harrison was a passenger in a Pontiac Grand Am involved in an accident with a Buick LeSabre driven by Wanda Ellis. Suit was brought to recover damages for injuries Harrison incurred. The jury returned its verdict in favor of Ellis, and the trial court denied Harrison's motion for a new trial. This appeal ensued.

In her sole enumeration of error, appellant contends the trial court erred by giving appellee's requested charge based on OCGA § 40-6-46, regarding no-passing zones. The transcript reveals that at the time the accident in issue occurred on Austell Road, that road consisted of two traffic lanes and a center turn lane. A K-Mart store was on the east side of the road; a Kentucky Fried Chicken and several other fast food restaurants were on the west side. Appellee was waiting in the exit to the K-Mart parking lot for the purpose of making a left turn southbound onto Austell Road. The evidence is uncontroverted that northbound traffic on Austell Road had backed up from a traffic light, but a pickup truck had left a gap open for K-Mart customers to exit the parking lot. Appellee crossed the northbound lane in front of the truck, and the collision in issue occurred in the center turn lane.

According to the testimony of appellant and her grandfather, Henry Buckland, the driver of the Grand Am, they were in the turn lane facing north but were at a complete stop in preparation for a left turn into the fried chicken restaurant. Appellant and Buckland both testified that appellee's Buick hit their car, Buckland stating that appellee "made too little sharp a turn" past the pickup truck. According to the testimony of appellee, however, it was Buckland's car that struck her car as she entered the turn lane. Appellee testified that as she exited the K-Mart parking lot in front of the pickup truck she could see into the turn lane, and that she observed no vehicle stopped there as she entered the turn lane. She testified Buckland's car was travelling between 15 to 25 miles per hour in the turn lane when it hit the front of her car.

The trial court charged the jury that "the defendant in the case [appellee] contends that the driver of the other vehicle [Buckland] violated Code section 40-6-46, and the defendant contends that the driver of the other vehicle was using the turning lane as a passing zone and was not authorized to do that. That is, the defendant is contending that the driver of the automobile in which the plaintiff was a passenger was prematurely in the turning lane, and that that was the negligence which caused the incident.... In this connection I charge you that the Department of Transportation and local authorities are authorized to determine those portions of any highway under their respective jurisdictions where overtaking and passing or driving to the left of the roadway would be especially hazardous, and may, by appropriate signs or markings on the roadway, indicate the beginning and the end of such zones, and when such signs or markings are in place and clearly visible to an ordinarily observant person every driver of a vehicle shall obey the directions thereof. Such no passing zones shall be clearly marked by a solid barrier line placed on the right hand element of a combination stripe along the center or lane line. I charge you that where signs or markings are in place to define a no passing zone as set forth ... no driver shall at any time drive on the left side of the roadway within such no passing zone or on the left side of any pavement striping designed to mark such no passing zone throughout its length. In this connection I further charge you that this Code section does not apply to the driver of a vehicle who is turning left into or from an alley, private road, or driveway. That is, if you find that a driver is using it for the purpose of making a legal turn then it would not be a violation. If you find in the evidence that a driver was using it as a passing lane to pass the other traffic rather than to be making a turn then it would be a violation, if you so find, of this Code section, and I charge you that a violation of this statutory provision constitutes negligence per se."

We agree with appellee that there was some evidence from which a jury could have found that the Grand Am was travelling in the turn lane, from which they could have inferred that Buckland was improperly using the turn lane as a passing lane. The fact that there is some slight evidence to support the charge, however, does not end the inquiry since appellant's argument, raised both before this court and the trial court, is that the reason why the Grand Am was in the turn lane had no bearing on the resolution of the issue before the jury, which was simply whether appellee had improperly failed to yield the right-of-way to the Grand Am. Appellant argues that even assuming, arguendo, that Buckland was improperly using the turn lane as a passing lane, appellee was obligated under OCGA § 40-6-73 to yield the right-of-way "to all vehicles approaching," an obligation which this court has held exists even though the approaching vehicle is doing so in an illegal manner. Munday v. Brissette, 113 Ga.App. 147, 160(10), 148 S.E.2d 55 (1966), rev'd on other grounds, 222 Ga. 162, 149 S.E.2d 110 (1966).

We do not agree. The driver of a vehicle has the right to assume that others using the roadways will obey the rules of the road. See Lusk v. Smith, 110 Ga.App. 36, 39-40, 137 S.E.2d 734 (1964). We interpret the language in Munday, supra, to mean that OCGA § 40-6-73 requires a driver entering a roadway to yield to an illegally approaching vehicle only where the driver of the entering vehicle has knowledge of the illegal approach of that vehicle, so as to embody the doctrine of last clear chance, see generally Lovett v. Sandersville R. Co., 72 Ga.App. 692, 695-698(1), 34 S.E.2d 664 (1945), since the statute has otherwise been construed to place no duty on the driver entering the roadway to yield to even properly approaching vehicles if the approaching vehicles are not visible to the driver of the entering vehicle. See Simpson v. Reed, 186 Ga.App. 297, 299(9), 367 S.E.2d 563 (1988). We note that while the trial court charged the jury extensively on proximate cause in the case sub judice, no charge on last clear chance was requested by either party and no such charge was given the jury. While a charge on last clear chance might have helped clarify the issue for the jury, in the absence of a request or any objection by appellant, it is not ground for reversal here that such a charge was not given. See OCGA § 5-5-24(a). It follows that since there was some evidence addressing the legality or illegality of the approach of Buckland's vehicle in the turn lane, it was not error for the court to charge the law in relation to that issue. See generally Eubanks v. Nationwide Mut. Fire Ins. Co., 195 Ga.App. 359, 364, 393 S.E.2d 452 (1990).

Judgment affirmed.

BANKE and BIRDSONG, P.JJ., and COOPER, J., concur.

CARLEY, POPE, BEASLEY and ANDREWS, JJ., concur specially.

McMURRAY, P.J., dissents.

BEASLEY, Judge, concurring specially.

If plaintiff's driver was using the turn lane as a passing lane in violation of OCGA § 40-6-46, and the driver of the entering auto had a right to assume that others using the roadway would obey the rules of the road, Lusk v. Smith, 110 Ga.App. 36, 39-40, 137 S.E.2d 734 (1964), so that she could assume no one was coming in that lane to pass vehicles in the pickup truck's lane, then she would have no duty to yield the right-of-way to an unknown and unseen vehicle because she had no duty to anticipate its advance. Obviously, if she saw or should have seen the approaching vehicle, OCGA § 40-6-73 would require her to yield, whether the approaching vehicle was proceeding legally or unlawfully. Munday v. Brissette, 113 Ga.App. 147, 160(10), 148 S.E.2d 55 (1966), rev'd on other grounds, 222 Ga. 162, 149 S.E.2d 110 (1966).

On the other hand, the driver of the entering auto had a duty to anticipate the approach of vehicles using the lane legally to make left turns and, in this regard, to yield even to unseen and unknown such vehicles. OCGA § 40-6-73. That is, since she could not see, she knew there might be unknown and unseen vehicles lawfully approaching. She took a risk of violating OCGA § 40-6-73 by relying on the pickup truck driver's indication that there were no vehicles to prevent a safe entry. Munday, supra, supports this conclusion in its emphasis on the statutory "all vehicles."

Simpson v. Reed, 186 Ga.App. 297, 299(9), 367 S.E.2d 563 (1988), is not in error as written because there may have been evidence that the driver of the entering vehicle exercised ordinary care in determining that no vehicle was approaching. If he did, then he would not be failing to yield to any vehicle in violation of OCGA § 40-6-73.

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