Whitehead v. Seymour, 44512

• Decision Date: 02 July 1969
• Docket Number: No. 2,No. 44512,44512,2
• Citation: 120 Ga.App. 25,169 S.E.2d 369
• Parties: Carl T. WHITEHEAD v. A. H. SEYMOUR et al
• Court: Georgia Court of Appeals

Page 369

169 S.E.2d 369

120 Ga.App. 25

Carl T. WHITEHEAD v. A. H. SEYMOUR et al.

No. 44512.

Court of Appeals of Georgia, Division No. 2.

July 2, 1969.

Syllabus by the Court

1. The defense of contributory negligence is affirmative in nature, and there is no burden on the plaintiff to prove lack of contributory negligence in making out his case.

2. Documentary evidence not in lieu of oral testimony may be sent with other papers to the jury room.

3. Where the plaintiff's testimony is to the effect that his stopping his vehicle in the center of a two-lane northbound freeway was due to a sudden emergency

where by reason of snow and fogging of the windshield he was unable to see ahead, and the defendant of offers the theory of pure accident as one of his defenses, it was not error to charge the jury on the theory of accident.

4. The doctrine of assumption of risk applies only where the actor, with full appreciation of the danger involved and without restriction of his freedom of choice by circumstances or coercion, deliberately chooses an obviously perilous course of conduct. The evidence in this case did not authorize an instruction to the jury on this subject.

5. The right to a thorough and sifting cross examination should not be abridged. It was not error to allow defendant's counsel to cross examine the plaintiff as to salary paid him during a period of time soon after his injuries were incurred, especially as the plaintiff sued for lost past and future earnings as well as pain and suffering.

6. Where there are two or more traffic lanes for vehicles proceeding in the same direction, cars in different lanes are not following each other within the meaning of statutes and ordinances forbidding 'following too closely' on a street or highway. Ingram v. Greyhound Corp., 97 Ga.App. 892, 895, 104 S.E.2d 658.

This case involves a multi-car collision on an expressway within the city limits of Atlanta. The plaintiff Whitehead, driving north in the outside lane, ran into difficulty with visibility ahead due to rain and snow. He testified that he pressed the 'defogger' button and for some reason the windshield immediately fogged over completely so that he was unable to see ahead; he rolled down the left window, edged toward the center line of the roadway, and slowed or stopped. Murray, operating a wrecker towing a Volkswagon immediately behind Whitehead in his lane of travel, noticed the right blinker light and brake lights, pulled off the right side of the road and stopped. A white Chevrolet automobile in the left northbound lane was brought by its driver, who observed plaintiff's actions, to a stop immediately adjacent to the cement median line on its left. These three vehicles effectively blocked all northbound lanes, according to witnesses. The defendant Seymour driving a tractor-trailer belonging to the defendant Custom Canners, Inc., was following the white Chevrolet on the left hand lane for northbound traffic; it either skidded or was turned into the center of the road and hit plaintiff's vehicle from the rear; Whitehead's vehicle, in turn, burst into flames, crossed the median, and struck a southbound automobile. Upon the trial of the case the jury returned a verdict for the defendant, and plaintiff appeals.

Telford, Wayne & Stewart, W. Woodrow Stewart, Gainesville, for appellant.

Kenyon, Gunter, Hulsey & Sims, Julius M. Hulsey, Gainesville, for appellees.

DEEN, Judge.

1. The court instructed the jury: 'The burden of proof is on the plaintiff, Mr. Whitehead; and in order for him to obtain a verdict in his favor by you the burden is on him to prove by a preponderance of the evidence not only that the defendants were negligent in one or more of the ways set forth in the plaintiff's petition but also that such negligence by the defendants was the proximate cause of his damage, if any.' He then stated: 'In addition to the foregoing, the burden is also on the plaintiff to prove by a preponderance of the evidence that he could not have avoided the damage caused by the defendants' negligence, if any, by the exercise of ordinary care on his part. In other words, before the plaintiff would be entitled to a verdict in his favor in this case, the burden is on him to prove by a preponderance of the evidence at least three things: first, that the defendants were negligent of at least one of the acts of negligence set forth in his petition; second, that such negligence by the defendants was the proximate cause of his damage, if any, and, third, that he could not have avoided such damage by the exercise of ordinary care on his part.' The instruction was error because proof of ordinary care on the part of the plaintiff in discovering and avoiding the negligence of the defendant is no part of the plaintiff's case in chief. 'It is insisted, however, that the plaintiff's husband, by the exercise of ordinary care and diligence upon his...