Jones v. Baggett Transp. Co.

• Decision Date: 10 June 1977
• Citation: 347 So.2d 105
• Parties: Louise Chisholm JONES, as widow of Charlie Jones, Deceased, and United States Fidelity and Guaranty Company v. BAGGETT TRANSPORTATION COMPANY et al. SC 2075.
• Court: Alabama Supreme Court

Page 105

347 So.2d 105

Louise Chisholm JONES, as widow of Charlie Jones, Deceased, and United States Fidelity and Guaranty Company v. BAGGETT TRANSPORTATION COMPANY et al.

SC 2075.

Supreme Court of Alabama.

June 10, 1977.

C. Mike Benson, of Haygood & Benson, Auburn, Edgar M. Elliott, of Rives, Peterson, Pettus, Conway, Elliott & Small, Birmingham, for appellants.

Joseph C. Carroll and Henry E. Simpson, Birmingham, for appellees.

JONES, Justice.

This case poses the question whether the trial Judge's jury instruction as to Georgia statutory law was correct.

The plaintiff, Louise Jones, widow of Charlie Jones, sued the Baggett Transportation Company alleging that, as a result of its truck driver's negligence, her husband was killed.

Mr. Jones was killed in an accident involving three tractor-trailer rigs. This accident occurred on I-285, the perimeter interstate which surrounds Atlanta. Two of the rigs were owned by Opelika Welding Company and were driven by Rex Bedell and the deceased. The third rig was owned by Baggett Transportation Company and was driven by Benjamin Lane.

The deceased was following the truck driven by Rex Bedell, his work partner, because Jones was not sure of the exact route he was to travel. The first time the three trucks came in sight of each other was at the junction of I-85 and I-285. This was approximately a mile and a half from the accident. The Baggett truck overtook and passed both trucks owned by Opelika Welding Jones first and then Bedell. Then, the Baggett truck returned to the righthand lane. Prior to the accident, the Baggett truck was in the lead, followed by Bedell and then the deceased. The Baggett truck then attempted to pass a pick-up truck and moved over into the lefthand lane. The defendant's truck suddenly skidded and then swung around in a half circle headed back in the direction from which it had come. The trailer was across the width of the lane. Bedell's truck collided with the rear of the Baggett truck and jackknifed to the left down into the median. The truck driven by Jones turned into the median with its brakes applied, turned over on its side, and slid across the median. This median was approximately forty to fifty feet wide and sloped toward the center like a valley. The jury returned a verdict in favor of the defendant.

The only error asserted by Mrs. Jones on appeal is that the following jury charge was erroneous:

"The next issue to be considered by you is the question: Could the Plaintiff's deceased husband by ordinary care have avoided the consequence to himself caused by the Defendant's negligence?

"Now, ordinary care in this sense means the care a reasonably careful person would have used under the same or similar circumstances once the Defendant's negligence became apparent or would have become apparent to a reasonably prudent man.

"On this point, the Court also charges you that the duty to use ordinary care to avoid the consequence of another's negligence does not arise until such negligence exists, or until circumstances are such that an ordinary prudent person would have reason to apprehend its existence." (Emphasis added.)

All the parties agree that the genesis of this charge is contained in the Georgia Code Annotated, § 105-603, which states:

"Diligence of plaintiff. If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover. In other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained."

Counsel for Mrs. Jones concedes that, generally, this charge would not be erroneous; but, in light of the particular facts of this case, prejudicial error resulted. Appellant contends that "last clear chance" cannot apply until the plaintiff is aware that a negligent act presents a danger to him; that is, in the context of these peculiar facts, the jury should have been instructed that the plaintiff's intestate's duty of ordinary care to avoid injury to himself arose not upon his apprehension of defendant's negligence, but upon his appreciation that such negligence represented a present danger. Mrs. Jones contends that, pursuant to this charge, the jury should have found that the deceased became aware of Mr. Lane's negligence when the Baggett truck first overtook and passed the decedent's truck some one and one-half miles prior to the accident. The appellant's argument concludes by stating that, under the charge, the jury would...