Simpson v. Reed

• Decision Date: 22 February 1988
• Docket Number: No. 75336,75336
• Citation: 367 S.E.2d 563,186 Ga.App. 297
• Parties: SIMPSON v. REED.
• Court: Georgia Court of Appeals

Page 563

367 S.E.2d 563

186 Ga.App. 297

SIMPSON v. REED.

No. 75336.

Court of Appeals of Georgia.

Decided Feb. 22, 1988.

Rehearing Denied March 11, 1988.

Certiorari Denied April 7, 1988.

Thomas S. Carlock, Atlanta, Daniel B. Simon III, Rockmart, for appellant.

William R. Waldrop, Holle Weiss-Friedman, for appellee.

SOGNIER, Judge.

Derrick Reed brought suit against Freda P. Simpson seeking damages for injuries he incurred when he was struck by the car driven by Simpson as he was crossing a rural highway on a riding lawnmower. The jury returned a verdict in favor of Reed and Simpson appeals from the judgment thereon.

1. Appellant contends the trial court erred by failing to give the jury appellant's request to charge No. 20, setting forth verbatim OCGA § 40-6-184 in its entirety. However, there was no evidence which would have rendered a charge based on subsection (b) of OCGA § 40-6-184, regarding the establishment of a minimum speed limit, applicable to this case. Since a portion of the Code section in the request was inapt or inapplicable, the trial court did not err by denying the request. Slaughter v. Linder, 122 Ga.App. 144(2b), 176 S.E.2d 450 (1970).

2. Appellant contends the trial court erred by failing to give her request to charge No. 13 that the law does not impose an absolute duty on a driver to be in such control of a vehicle so as to be able to stop the vehicle before injuring others. The trial court instead charged the jury that "there is no absolute duty on any driver to avoid a collision." "If the substance of a properly requested and appropriate instruction is given in the jury charge as a whole, the court is under no obligation to employ the exact language requested. [Cit.]" Davis v. Glaze, 182 Ga.App. 18, 23(12), 354 S.E.2d 845 (1987). This enumeration presents no reversible error.

3. We find no error in the trial court's refusal to charge appellant's request to charge No. 16 which stated principles of foreseeability contained in appellant's requested charge No. 17, which was given in full by the trial court. Nor do we agree with appellant's argument that the charge on foreseeability as given by the trial court was unfairly slanted in appellee's favor simply because the trial court, rather than using the third person impersonal "one," instead charged the jury that "it is not necessary that the Defendant should have been able to anticipate the particular consequences which ensued," and "[i]t is sufficient if in ordinary prudence the Defendant might have foreseen some injury would result." (Emphasis supplied.)

4. Appellant contends the trial court erred by charging the jury as to the doctrine of last clear chance. Although we agree with appellant that the last clear chance doctrine has no application unless the defendant knew of the plaintiff's perilous situation and had opportunity to take evasive action to avoid injuring him, see Conner v. Mangum, 132 Ga.App. 100, 106, 207 S.E.2d 604 (1974), the evidence here indicates that appellant saw appellee while 25 yards distant and although she asserts he was travelling along the side of the road and pulled out suddenly in front of her, the jury was authorized to believe appellee's testimony that he had not travelled along the side of the road but had entered the roadway solely to cross it on the diagonal when appellant struck him. Thus, the jury was authorized to find that appellant, though 25 yards distant and aware of appellee's presence crossing the road on the diagonal, nevertheless failed to take advantage of the distance to avoid injuring appellee by taking evasive action. Accordingly, it was not error to so charge the jury. See Central of Ga. R. Co. v. Wooten, 163 Ga.App. 622, 623(1), 295 S.E.2d 369 (1982); Vaughn v. American Freight System, 164 Ga.App. 786, 787(4), 298 S.E.2d 284 (1982).

5. We find no error in the trial court's instruction to the jury based on appellee's request to charge No. 8 as to the provisions of OCGA § 40-8-70(a), where there was evidence from which the jury could have concluded that appellant should have used her horn and that she failed to do so. Hurst v. J.P. Colley Contractors, 167 ga.app. 56, 58(4) 306 S.E.2d 54 (1983). Appellant argues that a conflict exists between the charge given on OCGA § 40-8-70(a) and the charge given based on Aultman v. Spellmeyer, 111 Ga.App. 769, 143 S.E.2d 403 (1965); however, having held that the Code section charge was proper and in view of the fact that appellant specifically requested the Aultman charge we find any error, assuming error exists, to present no ground for reversal. See generally Citizens, etc., Bank v. Morgan, 142 Ga.App. 337, 340(3), 235 S.E.2d 767 (1977).

6. Appellant has failed to demonstrate how a proper charge on the defendant's burden to prove any affirmative defenses, see Stewart v. Mynatt, 135 Ga. 637, 639(2), 70 S.E. 325 (1910), or the charge on foreseeability, cited in Division 3, infra, so confused or misled the jury as to constitute reversible error.

7. We find no error in the trial court's charge that "the failure to comply with the provisions of a valid law which proximately results in an injury to another is negligence as a matter of law. And this is so even though the statute may be one which regulates highway traffic." See generally Green v. Dillard, 176 Ga.App. 574, 575(1), 337 S.E.2d 55 (1985), overruled on other grounds, Kres v. Winn-Dixie Stores, 183 Ga.App. 854, 857, 360 S.E.2d 415 (1987). The fact that the only injuries sued for in the case sub judice were allegedly proximately caused by appellant's violation of valid traffic laws did not intimate that any alleged violation of traffic laws by appellee could not have constituted negligence as well. Nor do we find the trial court's repetition of this principle of law, in view of the charge as a whole, to constitute error. See Wendlandt v. Shepherd Constr. Co., 178 Ga.App. 153, 155-156(2), 342 S.E.2d 352 (1986).

8. In view of appellant's testimony that she was attempting to pass appellee at the time of the accident, the trial court's charges based on OCGA § 40-6-44 were not error. See generally Dept. of Transp. v. 19.646 Acres of Land, 178 Ga.App. 287, 288(2), 342 S.E.2d 760 (1986). We discern no merit in appellant's argument that these charges were erroneously given simply because it was appellee who requested them on the basis of appellant's testimony.

9. Nor do we find merit in appellant's argument that the trial court erred by instructing the jury that appellee had no duty to yield the right-of-way if the jury found that appellee, after stopping and looking, could not see appellant's automobile as he entered the roadway. The jury was authorized to find that appellant's automobile was not visible to appellee as he entered the roadway and thus a charge indicating the possible inapplicability of OCGA § 40-6-73 under such circumstances was adjusted to the evidence. See generally Cale v. Jones, 176 Ga.App. 865, 868(4), 338 S.E.2d 68 (1985).

10. We have carefully reviewed the...