Willis v. Jones, 34864
| Decision Date | 25 February 1954 |
| Docket Number | No. 1,No. 34864,34864,1 |
| Parties | WILLIS et al. v. JONES et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The court erred in charging the jury that, under the comparative-negligence rule and doctrine, the plaintiff would be barred from recovery if the plaintiff was guilty of a failure to exercise ordinary care before his duty to discover and avoid the negligence of the defendant arose; and therefore erred in denying the amended motion for a new trial.
Phillips, Johnson & Williams, Atlanta, for plaintiffs in error.
Ferdinand Buckley, Marshall, Greene, Baird & Neely, Atlanta, for defendants in error.
This was an action in which the plaintiffs sued for damages to an automobile allegedly resulting from the negligence of the defendants; and one of the defendants filed a counterclaim against the plaintiffs for damages to his automobile allegedly caused by the negligence of the plaintiffs. The jury found for the defendants, and the plaintiffs except to the denial of their motion for a new trial.
1. The first assignment of error is to the following charge: 'If the jury believes that the plaintiffs, Mr. and Mrs. Willis, in the transaction under investigation, through their son, were guilty of some negligence, but if you believe that that negligence did not amount to a lack of ordinary diligence; and if you further believe that such negligence was not as great as the negligence of the defendants, if any; then under those circumstances, the plaintiffs, Mr. and Mrs. Willis, would be still entitled to recover damages if the defendants, Mr. and Mrs. Jones, were guilty of negligence proximately contributing to the plaintiffs' injury, if any, but you would reduce the amount of recovery in proportion to the amount of default attributable to the plaintiffs by their son, if any.' The court erred in charging in substance that the plaintiffs could not recover under the comparative negligence principle unless the plaintiffs' negligence was less than the failure to exercise ordinary care. The trial judge at the point of the excerpt excepted to was not referring to the negligence of the plaintiffs in failing to avoid the negligence of the defendants after it was discovered or should have been discovered by the exercise of ordinary care. He was referring to negligence of the plaintiffs which preceded or concurred chronologically with the alleged negligence of the defendants. The decisions on this question are so confusing and conflicting that a trial judge would be justified in charging either one of two conflicting principles, depending on which case he chose for a guide. We are of the opinion that the true comparative-negligence rule is that, if a plaintiff and defendant are both guilty of negligence which concurs proximately to bring about an injury to a plaintiff, if the defendant's negligence is sufficient to predicate an action on, for example, ordinary negligence, and if the plaintiff is negligent, even if his negligence amounts to a failure to exercise ordinary care, and the plaintiff's negligence is not equal to or greater than that of the defendant, the plaintiff would still be entitled to recover, provided the plaintiff could not have avoided the consequences of the defendant's negligence by the exercise of ordinary care after it was actually discovered or should have been discovered by the exercise of ordinary care. The mere fact that the plaintiff might have been guilty of ordinary negligence before the duty arose to discover and avoid the defendant's negligence would not in and of itself preclude a recovery by the plaintiff. There are degrees of negligence between the minumum, where the evidence barely shows ordinary negligence, and wilful and wanton conduct. Within these extremes the negligence of the plaintiff and defendant may differ and may be compared, under the rule. We think that this conclusion is the only reasonable one in view of Code §§ 105-603 and 94-703. While the first of the above sections does not refer to the method of computing damages, the second has been applied to all kinds of negligence except when a special statute governs. There are only two exceptions in the two sections as applied by the courts to the right of recovery by a plaintiff who has been guilty of negligence concurring with that of a defendant to cause an injury. One is that a plaintiff may not recover if he could have avoided the negligence of the defendant by the exercise of ordinary care. The other is implicit and is that a plaintiff cannot recover if his negligence is equal to or greater than that of the defendant. Such a result follows the apportionment formula. Of course, a plaintiff cannot recover if his negligence is the proximate cause of his injuries. This rule is not another exception to the rule stated in the code sections referred to, because these sections refer only to cases where the concurring negligence of the plaintiff and defendant combined proximately to cause the injury. Code § 66-402 is an exception...
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...818; Whatley v. Henry, 65 Ga.App. 668, 674, 16 S.E.2d 214. The decisions involving these rules have been somewhat confusing. Willis v. Jones, 89 Ga.App. 824, 81 S.E2d 517. The charge complained of in this case was an attempt to combine all of these rules in one instruction to the jury. It c......
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