Smith v. Hardy

• Decision Date: 11 October 1977
• Docket Number: 54400,Nos. 54399,No. 2,s. 54399,2
• Citation: 144 Ga.App. 168,240 S.E.2d 714
• Court: Georgia Court of Appeals
• Parties: Helen K. SMITH et al. v. Patricia HARDY. Patricia HARDY v. Helen K. SMITH

Page 714

240 S.E.2d 714

144 Ga.App. 168

Helen K. SMITH et al. v. Patricia HARDY.

Patricia HARDY v. Helen K. SMITH.

Nos. 54399, 54400.

Court of Appeals of Georgia, Division No. 2.

Oct. 11, 1977.

Rehearing Denied Dec. 1, 1977.

Albert B. Wallace, Jonesboro, Charles M. Lipman, Atlanta, for appellants.

Long, Weinberg, Ansley & Wheeler, Arnold Wright, Jr., F. Clay Bush, Atlanta, for appellee.

SHULMAN, Judge.

Appellants, husband and wife, brought suit for injuries allegedly sustained in an automobile collision. This appeal follows a judgment entered on a jury verdict in favor of defendant-appellee.

The collision occurred near a highway intersection of Outer Loop Road and Jet Base Road. Prior to the collision appellant was traveling south on Outer Loop Road and appellee was traveling west on Jet Base Road. Jet Base Road is a one-way highway and is controlled by a stop sign for west bound traffic. Outer Loop Road is a one-way highway and is not regulated by traffic signs at this intersection.

The evidence is in sharp conflict as to how the wreck occurred.

Appellant testified that she was traveling in the left lane of Outer Loop Road at a constant speed of 25 to 30 miles per hour as she approached the intersection and had just passed Jet Base Road when she suddenly felt a terrific impact to her car from the rear. She further testified that she had never made a voluntary lane change either to or from the left lane near this intersection in question.

Appellee testified that she came to a complete stop at the intersection, that she checked and saw no cars in the left lane of Outer Loop Road, that she proceeded to turn left at a low rate of speed, and that she had completely straightened out her vehicle when appellant's car apparently changed lanes, crossed in front of her and cut her off. When the cars collided, the plaintiff's car was damaged on the left rear. The defendant's car was dented on the right front fender just behind the bumper and the bumper was scraped. The evidence is uncontradicted that after the impact plaintiff-appellant's vehicle went out of control, left the road, careened down a high embankment and crashed into a concrete culvert which was at the bottom of a ravine.

1. The trial court instructed the jury on Code Ann. § 68-1626(a) and included in his charge that ". . . defendant

is the one that contends that the plaintiff violated that particular law."

Appellants argue that this instruction was error because although the charge was a correct statement of the law, there was no evidence which would have authorized the jury to determine that appellant was driving at a speed greater than was reasonable or prudent. We disagree.

"(T)he jury may have concluded that plaintiff's conduct in approaching the point of impact at 25-30 mph violated Code Ann. § 68-1626(a) . . ." Kirkland v. Moore, 128 Ga.App. 34, 37, 195 S.E.2d 667, 669.

"Although evidence may be entirely circumstantial as to the rate of speed of an automobile, it may be sufficient to support a reasonable conclusion reached by the jury on the issue of negligence. Evidence of the force of the impact of a collision, or as to the distance which the automobile that caused the injury traveled from the point of the collision until it stopped, may of itself, and in connection with other circumstances, be sufficient to warrant a finding of the jury of negligence as to speed." Shockey v. Baker, 212 Ga. 106, 110, 90 S.E.2d 654, 657. See Gober v. Atlanta Baking Co., 128 Ga.App. 679(3), 197 S.E.2d 769 (sufficient evidence to authorize charge).

2. Appellant asserts that the charge given on proper lane changing (Code Ann. § 68-1640) was not authorized by the evidence. There was sufficient evidence to support the charge.

3. For the reasons stated in division 1, appellant's contention that there was no evidence to authorize a charge on Code § 68-1626(c) (speed on approaching an intersection) must fail.

"The only reasonable construction to be applied to subsection (c) of Code (Ann.) § 68-1626 is that a driver must reduce the speed of his vehicle in approaching an intersection so as to bring its immediate control within his power and render it safe to go into the intersection at the reduced rate of speed. If a driver approaches an intersection at a very low and lawful rate of speed it is a question for the jury as to whether in order to comply with subsection (c) of the Code section he need further reduce the speed of his vehicle." Hardwick v. Ga. Power Co., 100 Ga.App. 38, 43, 110 S.E.2d 24, 29.

Here, based on defendant's testimony, the jury would have been authorized to find that the defendant had entered and was using the intersection before plaintiff reached it. The jury had a right to consider the evidence under an appropriate charge from the court. Currey v. Claxton, 123 Ga.App. 681(1a), 683, 182 S.E.2d 136.

4. Appellant enumerates the court's charge of former Code Ann. § 68-1650(a), (b) (right-of-way provisions governing approaching or entering uncontrolled intersections) as error. We agree.

Although appellant recited in a pre-trial order that appellee was negligent in failing to comply with Code § 68-1650, this will not prevent her challenging the charge on § 68-1650 properly objected to as not authorized by the evidence and not requested by her. Tolbert v. Free, 111 Ga.App. 811, 143 S.E.2d 440 (recital in pre-trial order that party was relying on specific defense would not estop defendant from complaining of charge which was alleged to be misstatement of contention and not supported by evidence). A court is not bound by a pre-trial order which sets forth the contended issues of the parties; rather it must ascertain the issues actually made by the pleadings and the evidence. Hardeman v. Southern Home Ins. Co., 111 Ga.App. 638, 646, 142 S.E.2d 452.

Here the charge was simply not supported by the evidence. Since it is clear that the judge also charged the jury on Code Ann. § 68-1652, this enumeration is controlled by this court's decision in Continental Can Co. et al v. Price, 123 Ga.App. 356(1), 180 S.E.2d 923. In accordance with Continental Can Co., the charge constituted error which requires reversal.

5. At the close of jury charges, both appellant and appellee objected to the court's reading of F.L. § 68-1651 (the law

existing at the time of the occurrence). The jury was instructed that "The driver of a vehicle within an intersection intending to turn to the left shall yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard, but said driver having so yielded, and having given a signal, when, and as required by law when making such left turn, and the drivers of all other vehicles approaching the intersection, from said opposite direction, shall yield the right-of-way to such vehicle making such left turn."

Appellant contends that although this is a correct statement of the law, it was not authorized by the evidence.

The undisputed evidence showed that appellant was on a one-way street and turned left on to the one way intersecting street on which appellee was traveling. Thus, appellee was not "approaching from the opposite direction." The charge was not authorized by the evidence and should not have been given.

6. Appellant contends that the trial court erred in charging the provisions of former Code Ann. § 68-1652(a). Although appellant's failure to object would normally preclude consideration, since the case is reversed and requires a new trial, we deem it proper to consider this contention. "If the jury believed the defendant's testimony, as they had the right to do, to wit, that (she) stopped at the stop sign, and then accelerated (slowly) . . . , and if they believed plaintiff's testimony that plaintiff approached the intersection at 25-30 miles per hour, then the slow speed of defendant as against the much faster speed of plaintiff would strongly suggest that the defendant entered the intersection first, after stopping at the stop sign, and under Code Ann. § 68-1652(a) had the right of way at the time of the collision." Kirkland v. Moore, supra, 128 Ga.App. at 37, 38, 195 S.E.2d at 669. The charge, therefore, was authorized by the evidence.

7. In Enumerations 8, 9 and 10 appellant asserts that charges relating to appellant's possible contributory and comparative negligence are not authorized by the evidence. There was sufficient evidence presented to authorize these charges.

8. The jury was charged on the doctrine of plaintiff's last clear chance. Appellant complains that the charge was not authorized by the evidence.

There is no evidence in the record from which the jury could find or infer that the plaintiff saw or knew of defendant's perilous position and that she realized or had reason to realize her helpless condition. This charge was inappropriate under the facts of this case. Conner v. Mangum, 132 Ga.App. 100(6), 207 S.E.2d 604.

9. Appellant challenges various jury charges relating to damages. "The well established rule is that where the court incorrectly instructs the jury as to the measure of damages to be applied if the jury exonerates the defendant so that the consideration of the measure of damages is eliminated from the case, instructions given, even if erroneous, cannot be held to prejudice the plaintiff's cause. (Cits.)" Jackson v. Miles, 126 Ga.App. 320(3), 190 S.E.2d 565, 567.

Since we are reversing this case, however, we have reviewed the charges complained of. Appellant contends that the court erred in allowing the jury to decide liability for an allegedly negligent act on the basis of the foreseeability of the consequences. It is apparent, from their...