Sapp v. Johnson, 74923
| Decision Date | 29 September 1987 |
| Docket Number | No. 74923,74923 |
| Citation | 184 Ga.App. 603,362 S.E.2d 82 |
| Parties | SAPP et al. v. JOHNSON et al. |
| Court | Georgia Court of Appeals |
Kenneth Kalivoda, David R. Montgomery, James E. Hudson, Athens, for appellants.
E. Davison Burch, Athens, Lane Fitzpatrick, Danielsville, Frederick A. Bading, Athens, for appellees.
Personal Injury and Property Damage--Liability. The facts of this case pertinent to our decision show that on the morning of January 10, 1983, in Clarke County, it had been raining and at the time of the accident involved, it was still drizzling. Johnson, while using Mrs. Adams' pick-up truck, was taking a load of cinders to place part of the load upon his (Johnson's) driveway and then on to Mrs. Adams' drive. While en route to his home, Johnson pulled into a service station to purchase gasoline. After purchasing gas, Johnson pulled the truck to the edge of the service station lot to enter the adjacent highway. Johnson claimed he looked both ways and observed only the top of an approaching vehicle which was in a dip in the highway approximately 17 seconds from the station at the speed of 50 mph (facts established by Sapp). Johnson pulled into the highway turned right, and proceeded up the highway. Johnson testified he passed through first, second and third gears and was proceeding at a rate of approximately 35 mph when he first noticed a car passing his truck on the left side. Johnson testified there was no approaching traffic in the left lane but because of a nearby intersection, there was a double solid yellow line barring passing at that point. Johnson stated further that after the car passed him on the left side, the driver made a rather sharp return to the right lane in front of Johnson and the car commenced a skid. He watched the car skid off the roadway and slide into a tree on the side of the road. Johnson stopped his truck and went to the site of the accident. He observed a person (proved to be Jonathan Sapp) in the car. Johnson saw a small amount of blood at Sapp's ear but Sapp did not appear to be otherwise injured. At about that moment, two other cars stopped (one of which was operated by Sapp's brother). Jonathan Sapp was taken from the car, and Johnson concluded Sapp was in good hands. Not feeling a part of the accident except as an observer, Johnson went on his way to complete his mission of spreading cinders.
In contradiction to this version, Jonathan Sapp testified that he was driving his father's Camaro on his father's business. As he (Sapp) crested the hill leading to the service station, Sapp saw a heavily loaded pick-up truck enter the highway in front of him without stopping. Sapp tried to brake the Camaro but because of the wet pavement the car obviously was not going to slow sufficiently to avoid a rear-end collision. Sapp saw a car approaching on the left but had sufficient time to pass the truck on the left and pull back into the right lane. However because of the short time, when Sapp pulled back into the right lane in front of the pick-up truck, the Camaro commenced to skid and Sapp slid off the road into a tree. Sapp's brother testified that when he arrived at the scene of the accident he saw the pick-up truck parked on the side of the road and Johnson at the side of the Camaro. He then observed Johnson starting to leave. He called out to Johnson to stay but Johnson ignored him and drove away.
Sapp does not contest the facts are sufficient to support the verdict in favor of Johnson if Johnson's version was accepted by the jury. However, Sapp does urge error by the trial court in refusing a charge on "flight" by Johnson from the scene of the accident and in affirmatively charging on principles of driving to the left of a double solid yellow line and in the left lane within 100 yards of an intersection; in allowing evidence that Jonathan was not wearing a seat belt at the time of the accident and refusing a charge that the jury must disregard any evidentiary reference to the failure to wear a seat belt. Held:
1. There is no merit to the first enumeration of error based upon the failure to charge on "flight." The jury was not asked to determine under appropriate instructions whether when Johnson left he had a conscious awareness that he was involved in an accident and had caused one and "fled" the scene. Sapp's request sought to have the trial...
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