Yandle v. Alexander

• Decision Date: 12 July 1967
• Docket Number: No. 42956,No. 1,42956,1
• Citation: 116 Ga.App. 165,156 S.E.2d 504
• Parties: Gladys T. YANDLE v. Robert ALEXANDER et al
• Court: Georgia Court of Appeals

Page 504

156 S.E.2d 504

116 Ga.App. 165

Gladys T. YANDLE v. Robert ALEXANDER et al.

No. 42956.

Court of Appeals of Georgia, Division No. 1.

July 12, 1967.

Syllabus by the Court

Where it appeared that plaintiff stopped her automobile at an intersecting street, observed defendant approaching from her left at a distance of some 400 feet and at an apparent speed that she judged would make it safe for her to proceed across the intersection, but that she either misjudged defendant's distance away or his speed, which may have been in excess of that permitted by law, resulting in a collision of the vehicles in the intersection, a verdict should not have been directed for the defendant on the ground that the plaintiff had assumed the risk; the matter should have been submitted to the jury under the comparative negligence doctrine.

Mrs. Gladys Yandle brought suit against Robert Alexander, seeking to recover damages for personal injuries sustained when young Alexander, driving a car, struck the car which plaintiff was driving through a street intersection.

By amendment J. Sim Alexander was made a party defendant, over objection of the original defendant to the action, alleging that he was the father of Robert Alexander and that he was liable for the son's actions in the matter under the doctrine of respondeat superior.

Upon trial of the case the jury would have been authorized to find from the evidence that Mrs. Yandle, proceeding west along a street in Lyons, Ga., came to an intersection at which there was a stop sign facing her and that she brought the car to a complete stop. She and her daughter, who accompanied her in the car, looked to the left and to the right. Both of them saw the Alexander car approaching from their left at a distance of approximately 400 feet and, under their testimony, at a speed that would afford Mrs. Yandle ample time to proceed with crossing the intersection before the Alexander car would reach it. They also saw a car approaching from their right at some distance away, which played no part in the ensuing event.

The intersection was located near a school, and defendant had passed a sign some two blocks to the south indicating that he was about to enter a school zone wherein the speed limit was 15 miles per hour.

There was no evidence of any city ordinance making the street on which defendant was driving a 'through street,' or requiring that vehicles entering the intersection be first brought to a stop, nor was there evidence of any ordinance making the area a school zone or limiting the speed to 15 miles per hour.

There was, however, evidence indicating that the defendant may have been operating his vehicle at a speed of 40 to 45 miles per hour, as well as evidence that he was traveling at lesser speeds. A certified copy of an ordinance limiting the speed of vehicles to 20 miles per hour at any point or place within three blocks of the intersection of U.S. Highway No. 1 and the Seaboard Air Line Railroad, and to 30 miles per hour in any other portion of the city was in evidence. There was no proof that the intersection was within three blocks of the railroad and highway intersection, and hence it would appear that the general speed limit of 30 miles per hour prevailed.

Relative to the matter of the school zone, it appears that the collision occurred Friday afternoon, November 26, 1965 (Thanksgiving weekend) at about 5:15, when no school was in session and there was no obvious activity about the school.

Mrs. Yandle testified that she had entered the intersection, which she had approached from the defendant's right, and had reached a point somewhat beyond the center of the street before being struck by his car.

At the close of the evidence a motion for directed verdict for the defendants was sustained on the ground that plaintiff, having stopped at the intersection and observed the approach of defendants' vehicle, assumed the risk by pulling out into the street in front of it. From that judgment plaintiff appeals.

William T. Whatley, Vidalia, for appellant.

Sharpe, Sharpe & Hartley, T. Ross. Sharpe, Lyons, for appellee.

EBERHARDT, Judge.

While the evidence may well have authorized a charge by the court on the matter of whether plaintiff had exercised ordinary care for her own safety in driving into the intersection (Palmer v. Stevens, 115 Ga.App. 398, 154 S.E.2d 803), we do not think it authorized the direction of a verdict upon the ground of assumption of risk (which is a different, though closely related, principle of law) or otherwise.

Assumption of risk is well defined in Roberts v. King, 102 Ga.App. 518, 520, 116 S.E.2d 885, where it is to be noted that it presupposes or is grounded upon a knowledge of the danger and an intelligent acquiescence in it. It is the situation in which one voluntarily takes the risk of a danger which is so obvious that he knows or must know of it, as in trying to beat a rapidly approaching train across the track, or in accompanying one whom he knows is about to engage in a drag race, or in walking out onto a frozen pond where the ice is thin, etc.

Here Mrs. Yandle says she saw defendant's car some 400 feet away, apparently traveling at a moderate speed that would make it safe for her to proceed to...