Holcomb v. Kirby, s. 43112

• Citation: 160 S.E.2d 250,117 Ga.App. 266
• Decision Date: 19 February 1968
• Docket Number: Nos. 43112,2,43113,Nos. 1,3,s. 43112,s. 1
• Parties: James T. HOLCOMB v. Stanley R. KIRBY. Stanley R. KIRBY v. James T. HOLCOMB. Jan, 11, 1968. Rehearing Denied Jan. 30 and
• Court: United States Court of Appeals (Georgia)

Page 250

160 S.E.2d 250

117 Ga.App. 266

James T. HOLCOMB v. Stanley R. KIRBY.

Stanley R. KIRBY v. James T. HOLCOMB.

Nos. 43112, 43113.

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

Jan, 11, 1968.

Rehearing Denied Jan. 30 and Feb. 19, 1968.

Syllabus by the Court

1. No exception having been made before verdict to portions of the charge, and no error appearing which we find to be harmful as a matter of law, no reversible error appears.

2. While emergency ordinarily involves the matter of whether one has opportunity to make a choice of two courses of action, it can arise with such suddenness that one does not have the time for making judgment as to whether his course of action should be different.

3. The charge relative to the duty owed by a host driver to his guest, together with a charge that the negligence, if any, of the host was not imputable to the guest, though the guest could not recover against the driver of another vehicle colliding with that in which she was riding if her host's negligence was the sole proximate cause of her injuries, was not confusing or misleading to the jury.

4. An exception that the court refused to charge 'in the language of' certain written requests presents nothing for consideration on appeal.

James T. Holcomb brought an action against Stanley R. Kirby for damages for the wrongful death of his wife while she was allegedly riding as a guest passenger in an automobile which was struck by the defendant's automobile. The petition as amended alleged substantially as follows: At approximately 10:40 p.m., February 4, 1964, Mrs. Holcomb and the driver of the Volkswagen in which she was a guest passenger had become lost and they were trying to find the residence of a friend. They drove in a northeasterly direction on Mount Vernon Road and entered its intersection with Chamblee-Dunwoody Road at approximately 25 miles per hour. At approximately the same time, the defendant was driving a Ford automobile in a north-westerly direction on Chamblee-Dunwoody Road toward the aforesaid intersection at a speed of 60 to 65 m.p.h. in a posted 45 m.p.h. speed zone. As the two vehicles approached the intersection, the defendant continued to drive at said speed and, although he knew that the other automobile was also entering the intersection, he failed to have his vehicle under control and neglected to apply his brakes until he was 32 feet from the point of impact, resulting in a collision with the side of the VW, which knocked at approximately 90 feet down Chamblee-Dunwoody Road, causing the death of Mrs. Holcomb. The action is brought to recover for the full value of the wife's life and her funeral expenses, all of which damages were proximately caused by the following alleged acts of the defendant's negligence: (a) In driving at a speed greater than reasonable under existing conditions, in violation of Code Ann. § 68-1626(a); (b) In driving at a speed in excess of 50 m.p.h. at nighttime, in violation of Code Ann. § 68-1626(b)(2); (c) In failing to reduce his speed before entering the intersection, in violation of Code Ann. § 68-1626(c); (d) In failing to apply his brakes in time to avoid a collision; (e) In failing to yield the right of way to the VW, which had entered the intersection first, in violation of Code Ann. § 61-1650(a); (f) In driving at a speed in excess of the 45 m.p.h. posted speed limit, in violation of Code Ann. §§ 68-1626, 68-1627, being negligence per se.

The defendant filed an answer to the petition and on the trial of the case before a jury the following evidence was adduced: Mrs. Holcomb had left her home in Rossville, Georgia, as a guest passenger in the VW, driven by Mrs. Cornelia Payne. They were going to Atlanta to visit a friend of Mrs. Holcomb. According to Mrs. Payne, shortly before the collision she became lost and stopped at a service station to ask directions. The last thing she remembered before regaining consciousness four days after the collision was having stopped at a traffic light. She was confused about whether or not the light was at the intersection where the collision occurred.

Police officer Honea testified that, in his opinion, the defendant's speed at the time he applied his brakes was about 40 m.p.h. He further expressed his opinion, based upon the positions of the two occupants of the VW when he arrived on the scene (Mrs. Payne was pinned in the right, or passenger, side and Mrs. Holcomb's body was outside the automobile), that Mrs. Holcomb had been driving at the time of the collision.

According to the investigating police officers, the defendant's vehicle had left 32 feet of skid marks up to the point of impact, at which point it spun around 13 feet and slid backwards 17 feet up against the northeast curb. The VW was found at a point approximately 90 feet north of the intersection alongside Chamblee-Dunwoody Road, having left no skid marks and no marks indicating that its brakes had been applied.

The defendant, the sole eyewitness to the collision, testified that his speed had been 50-55 m.p.h., that he had reduced it to 35-40 m.p.h. at a school zone a considerable distance from the intersection and that it was 35-40 m.p.h. at the time he applied his brakes in attempting to stop; that he had slowed down because he knew of the existence of the intersection; that he first saw the VW as it cleared a building on the southwest corner of the intersection, at which time he estimated its speed to have been at least 50 m.p.h.; that the VW neither decreased in speed nor swerved in either direction prior to the collision; that he was unable to determine whether or not the VW's headlights were on; that he applied his brakes immediately upon seeing the VW and skidded into it; that the traffic light at the intersection was not operating at the time involved.

Mr. Dale Metzger, an accident reconstruction expert, testified that, in his opinion, based upon police measurements and photographs and his own calculations and viewing of the scene, that the defendant's automobile was 40 to 45 feet from the closest crosswalk line at the time the VW was entering the intersection and he was traveling between 40 and 45 m.p.h. when he applied his brakes; that a vehicle travels 66 feet per second at 45 m.p.h. and 60 feet per second at 40 m.p.h.; that the VW traveled in a straight line, probably without applying brakes or reducing speed, at a speed of 20 to 25 m.p.h. at the time of impact; that approximately 2.53 seconds elapsed between the time when the defendant could have seen the VW and the time of impact, one second of which was his reaction time; that it would be a mathematical impossibility for the defendant's vehicle to have been going 35 to 40 m.p.h. and the VW to have been going 50 to 60 m.p.h. and the two vehicles to have ended up in the positions in which they were found.

The trial resulted in a verdict and judgment in favor of the defendant. The plaintiff appeals from the judgment of the court overruling his motion for a new trial. The defendant filed a cross appeal, enumerating as error certain rulings on the pleadings.

Woodruff, Savell, Lane & Williams, Edward L. Savell, Atlanta, Burton Brown, LaFayette, for appellant.

Powell, Goldstein, Frazer & Murphy, C. B. Rogers, David R. Aufdenspring, Atlanta, for appellee.

EBERHARDT, Judge.

1. Appellant enumerates as error the charging of both Subsections (a) and (b) of Code § 68-1650 (which he now contends are conflicting) 'without giving an explanation as to how they should be resolved.' No exception was made to this part of the charge, or as to any failure of the court to charge an 'explanation' thereof at any time before verdict, as is required by Code Ann. § 70-207(a). Consequently, unless error appears that is 'harmful as a matter of law' we are not authorized to consider this enumeration. For statements of when an error (if there was one) meets the test for consideration under Code Ann. § 70-207(c), see Nathan v. Duncan, 113 Ga.App. 630(6), 636, 149 S.E.2d 383; Georgia Power Co. v. Maddox, 113 Ga.App. 642(1), 149 S.E.2d 393; Hollywood Baptist Church of Rome v. State Highway Dept., 114 Ga.App. 98, 99(3), 150 S.E.2d 271; Southwire Co. v. Franklin Aluminum Co., 114 Ga.App. 337(2), 151 S.E.2d 493; Metropolitan Transit System, Inc. v. Barnette, 115 Ga.App. 17(1), 153 S.E.2d 656; Windsor Forest, Inc. v. Rocker, 115 Ga.App. 317, 324(4), 154 S.E.2d 627; Moon v. Kimberly, 116 Ga.App. 74(2), 156 S.E.2d 414; City of Douglas v. Rigdon, 116 Ga.App. 306(2), 157 S.E.2d 66, and Hawkins v. State, 116 Ga.App. 448, 157 S.E.2d 800. The situation presented here does not meet these tests. Cf. Williams v. State, 223 Ga. 773(4), 158 S.E.2d 373.

It does not appear, and it is not contended that any request was made upon the court for any other or further charge than that which was given relative to these statutory provisions. For this reason no error appears. Barnes v. Barnes, 224 Ga. 92(3), 160 S.E.2d 391; Foskey v. State, 116 Ga.App. 334(2), 157 S.E.2d 314; Carroll v. Morrison, 116 Ga.App. 575(4), 158 S.E.2d 480; Gilmore v. State, 117 Ga.App. 67(1), 159 S.E.2d 474.

As we understand the dissent, it is not found, as contended, that the two subsections of this statute are conflicting. Rather, the view is that each is appropriate to a different state of facts, and that the evidence, being conflicting, presents each state of facts. With that we agree. Consequently, the charging of each subsection was appropriate. A contrary holding is not to be found in Ivey v. Hall, 77 Ga.App. 350, 48 S.E.2d 788, where the charge was not in the language of the statute and the court, though finding some 'inaptness' in the charge, found no reversible error.

2. Under the definition of emergency in Seaboard Air-Line Ry. v. McMichael, 143 Ga. 689, 695, 85 S.E. 891, we think the facts as developed by the evidence in this case authorized a charge on the matter. And see Bryant v. Georgia Ry. & .power Co., 162 Ga. 511, 517, 134 S.E....