Meacham v. Barber, s. 74050

• Decision Date: 02 July 1987
• Docket Number: Nos. 74050,74051,s. 74050
• Citation: 359 S.E.2d 424,183 Ga.App. 533
• Parties: MEACHAM v. BARBER et al. (Two Cases).
• Court: Georgia Court of Appeals

Page 424

359 S.E.2d 424

183 Ga.App. 533

MEACHAM v. BARBER et al. (Two Cases).

Nos. 74050, 74051.

Court of Appeals of Georgia.

July 2, 1987.

Thomas W. Thrash, Jr., Richard W. Hendrix, Atlanta, for appellant.

John M. Taylor, La Grange, B. Holland Pritchard, Atlanta, for appellees.

CARLEY, Judge.

Mark Meacham is the appellant-plaintiff in Case Number 74050. He lost control of his vehicle while negotiating a curve in a two-lane highway. At the time of this occurrence, appellee-defendants were engaged in cutting pulpwood on property which was adjacent to one side of the highway and, according to the allegations of the complaint that Mr. Meacham filed against appellees, those pulpwooding activities had resulted in an accumulation of mud on the surface of the highway. Mr. Meacham's complaint further alleged that the loss of control over his vehicle and his resulting injuries were proximately caused by appellees' negligence in allowing this slippery condition to develop and to remain on the highway. See generally Hardy v. Brooks, 103 Ga.App. 124, 126(2), 118 S.E.2d 492 (1961). Mr. Meacham's wife is the appellant-plaintiff in Case Number 74051. She filed her separate action against appellees, seeking damages for loss of consortium. The two actions were consolidated for a single trial before a jury. The jury returned verdicts in favor of appellees. Appellants Mr. and Mrs. Meacham filed separate notices of appeal, but identical enumerations of error. Accordingly, the two appeals are hereby consolidated for appellate disposition in this single opinion.

1. Over objection, appellees were allowed to cross-examine Mr. Meacham with regard to his involvement in three prior traffic mishaps. The trial court's failure to sustain the objection to this line of inquiry is enumerated as error.

"As a general rule in all negligence actions, evidence of similar acts or omissions is not admissible. [Cits.] However, '[i]f proof of a similar accident or similar method of acting tends to prove some fact of the case on trial, the [evidence then] falls within an exception' " to the general rule and will be admissible as proof of that presently relevant fact. Gunthorpe v. Daniels, 150 Ga.App. 113(1), 257 S.E.2d 199 (1979). In urging the applicability of this limited evidentiary exception to the general rule of inadmissibility of prior events, it is necessary to show more than the mere previous occurrence of a similar incident. " '[I]t is necessary that the conditions of the things [to be] compared be substantially similar.' [Cit.]" Carlton Co. v. Poss, 124 Ga.App. 154, 155(3), 183 S.E.2d 231 (1971), aff'd 228 Ga. 402, 185 S.E.2d 803 (1971). Appellees initially urge that Mr. Meacham's prior involvement in all three of the traffic mishaps was relevant for the limited purpose of showing that his injuries may have been attributable to those prior unrelated occurrences rather than to their alleged negligence. See generally Goforth v. Wigley, 178 Ga.App. 558, 560(2), 343 S.E.2d 788 (1986). However, insofar as appellees would urge the relevancy of a comparison of injuries, it would be necessary to show the existence of a substantial similarity between Mr. Meacham's purported present injuries and any prior injuries with which the comparison is to be made. See Carlton Co. v. Poss, supra. Appellees did not adduce any evidence that Mr. Meacham had been physically injured in any of his three prior traffic mishaps. Compare Barnes v. Cornett, 134 Ga.App. 120, 213 S.E.2d 703 (1975); Goforth v. Wigley, supra. If there was no showing that Mr. Meacham had suffered any injuries whatsoever in his three prior traffic mishaps, there is no merit in appellees' contention that the evidence as to the occurrence of those prior mishaps would be relevant and admissible under the exception that they urge. There would be nothing from which the jury could find that Mr. Meacham's alleged present injuries were, either in whole or in part, the result of his involvement in those prior traffic mishaps.

Apparently, one of the three prior incidents had occurred when Mr. Meacham lost control of his vehicle while negotiating exactly the same curve in the highway where he had lost control of his vehicle on this occasion. Appellees further urge that evidence as to this single prior mishap would be relevant to the limited issue of whether the curve in the highway had been a causal factor in the events under present consideration. See generally Reed v. Heffernan, 171 Ga.App. 83, 84(1a), 318 S.E.2d 700 (1984). In specific, appellees contend that this prior incident would support their contentions that the curve itself was dangerous and that Mr. Meacham had personal knowledge of that danger. See generally Wright v. Dilbeck, 122 Ga.App. 214, 216(4), 176 S.E.2d 715 (1970).

Had appellees adduced any evidence that the curve in the highway had been a causal factor in the earlier event, there might be merit in the asserted relevancy of the occurrence of that event as proof of the existence of a dangerous condition and Mr. Meacham's knowledge thereof. See generally City of Augusta v. Hafers, 61 Ga. 48(3) (1878); Gilmer v. City of Atlanta, 77 Ga. 688(1) (1886); City of Dublin v. Howell, 68 Ga.App. 463, 23 S.E.2d 177 (1942). However, the record is totally silent as to the cause of the earlier incident. That a driver lost control of his vehicle while traversing the curve in a highway is not, standing alone, evidence that the curve itself is dangerous and was a causal factor in the occurrence. On the record before us, that the cause of Mr. Meacham's prior traffic mishap was a potentially dangerous curve is merely speculative conjecture. It just as easily may have been the result of a mechanical failure, a tire blowout, or any number of causes in which the configuration of the highway itself played no part. Compare Reed v. Heffernan, supra (evidence that a prior incident occurring at the curve in question had been caused by hydroplaning was admissible to elucidate the present defensive contention that hydroplaning was the cause of the incident that was then under consideration). If there was no evidence to show that the curve had been a causal factor in the prior occurrence rather than merely the geographic location where the prior mishap occurred, there is no merit in appellees' contention that the evidence as to the occurrence of that mishap would be relevant and admissible under the exception that they urge. Likewise, the evidence of the prior mishap at the curve would not be relevant to impeach Mr. Meacham's testimony that the curve was as "safe as the rest of the road." Had the curve merely been the location of Mr. Meacham's prior mishap rather than an actual causal factor in its occurrence, proof merely that there had been a prior occurrence at the curve would not be impeaching of Mr. Meacham's current opinion as to the relative safety with which one could traverse the curve.

"While the relevancy of other occurrences is ordinarily within the sound discretion of the court, 'it is necessary that the conditions of the things compared be substantially similar.' [Cit.] Without a showing of substantial similarity, the evidence is irrelevant as a matter of law and there is nothing upon which the court's discretion can operate. [Cits.]" Carlton Co. v. Poss, 124 Ga.App. supra at 155(3), 183 S.E.2d 231. Here, there was no showing of any substantial similarity between the physical injuries, if any, sustained by Mr. Meacham in the three prior traffic mishaps and those injuries which he had allegedly incurred as the result of this incident. There was no showing of any substantial similarity between the causal factors in the occurrence of this present mishap and the occurrence of Mr. Meacham's prior loss of control of his vehicle while negotiating the curve. Thus, the only possible inference arising from the introduction of the evidence of the three prior occurrences is that Mr. Meacham had been negligent on those three occasions and that he had, therefore, probably been negligent on this occasion as well. The trial court erred in admitting the evidence and that error requires the grant of a new trial.

2. "[I]t is proper in a negligence action, where the plaintiff has made out a prima facie case, for the court to charge the jury that the burden is on the defendant to establish by a preponderance of the evidence that the plaintiff's injuries were caused by his own negligence or contributory negligence if the defendant relies on such defense...." Garner v. Sharp, 111 Ga.App. 47, 48(3), 140 S.E.2d 511 (1965). Appellants made a written request for such instruction. Compare Garner v. Sharp, supra; Whitman v. Burden, 155 Ga.App. 67(2), 270 S.E.2d 235 (1980). The trial court's refusal to give this requested instruction is enumerated as error.

Appellees make no contention that appellants' written request, as phrased, was not a sufficiently non-argumentative statement of an otherwise applicable legal principle in the cases. Nowhere in the charge as it was actually given by the trial court was the legal principle contained in appellants' refused request otherwise addressed. Indeed, the charge as it was actually given by the trial court could easily be misconstrued by the jury as imposing the burden upon appellants of proving not only appellees' negligence but also the burden of proving the absence of any contributory negligence on the part of Mr. Meacham. Cf. Whitehead v. Seymour, 120 Ga.App. 25, 26(1), 169 S.E.2d 369 (1969). "An instruction erroneously casting the burden of proof on the losing party as to a substantial issue in the case is usually reversible error. [Cit.]" Whitehead v. Seymour, supra at 27(1), 169 S.E.2d 369. Under the circumstances of this case, the refusal to give appellants' written request was error. Assuming that the evidence adduced at the retrial of these cases is the same as that which was adduced here, such a charge should be given if it is again requested in writing.

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