Pace v. Foster
| Decision Date | 04 September 1979 |
| Docket Number | No. 57177,57177 |
| Citation | 259 S.E.2d 100,150 Ga.App. 895 |
| Parties | PACE v. FOSTER et al. |
| Court | Georgia Court of Appeals |
Paulk, Kearns and Reeves, P. C., L. A. Paulk, Marietta, for appellant.
Downey, Cleveland & Moore, Lynn A. Downey, Joseph C. Parker, Marietta, for appellees.
Appellant Pace, the plaintiff below, contends the trial court erred in charging the jury, in failing to deliver certain requested charges, in overruling his motion for a directed verdict, and in denying the general grounds of his motion for new trial. Because the court erroneously charged on the doctrine of sudden appearance, we reverse.
At 7:30 on the morning of March 5, 1975, appellee Harold C. Foster transported his mother, by automobile, to Blackwell Elementary School in Marietta. After dropping his mother off, Foster proceeded along the school driveway to the exit intersecting Canton Road, onto which he eventually took a right. At that time, appellant, a school crossing guard dressed in a reflective vest, began walking along the edge of the school driveway toward the intersection. Foster stopped at a stop sign near the end of the driveway and, his view of traffic coming from the left along Canton Road being blocked by a fence, he gradually proceeded on a few feet to the Canton Road intersection, all the while focusing his attention back to the left. Without looking, appellant had walked briskly onto Canton Road and, stationing himself just to the right of the intersection, prepared to direct traffic. In the meantime, Foster had pulled slowly away from the intersection and, still looking to his left, collided with appellant. Foster admitted that, from the time when he let his foot off the brake after coming to a stop at the stop sign until the point of impact, he never looked straight ahead but continuously looked to the left.
1. Assuming a charge on the doctrine would have otherwise been appropriate in this case involving an adult plaintiff, nevertheless the evidence did not authorize a charge on the doctrine of sudden appearance and the trial court committed error in giving one. "The 'sudden-appearance' doctrine (is) involved in cases where a child suddenly appears from behind some obstacle and runs into a vehicle Under circumstances where the driver had no occasion to anticipate it and guard against it and could do nothing to avoid a collision. . . ." (Emphasis supplied.) Christian v. Smith, 78 Ga.App. 603, 606, 51 S.E.2d 857, 860-861 (1949). Here appellee testified he was not looking where he was going, and the evidence did not even remotely suggest that he could have done nothing to avoid the collision.
2. Appellant contends the trial court erred in refusing to deliver his requested charge that the driver of an automobile is bound to use reasonable care and to anticipate the presence on the street of pedestrians " 'having equal rights with him' " to be there. Whiteway Laundry etc. v. Childs, 126 Ga.App. 617, 620, 191 S.E.2d 454 (1972). Appellant's contention must fail, as he does not suggest and we find no evidence indicating that he was within a crosswalk, the factual situation which...
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...382, 384(3), 238 S.E.2d 695 (1977). See also Rothrock v. Martin, 138 Ga.App. 16(1), 225 S.E.2d 489 (1976); Pace v. Foster, 150 Ga.App. 895, 896(1), 259 S.E.2d 100 (1979); Campion v. McLeod, 108 Ga.App. 261, 132 S.E.2d 848 Appellee-Schwartz's argument on appeal that the charge was authorized......
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