Bang! went the rifle as the hunter shot at a wild turkey. The elusive bird was missed, the velocity of the bullet then speeding it through the trunk of a small tree from which fragments of the shattered projectile ricocheted and hit two other nimrods who were themselves in the underbrush and previously unseen by the shooter. Thus was provided the setting for this case of first impression on the Georgia law applicable to a sport 50 popular in our State that in the last fiscal twelve-months period our Game and Fish Commission issued 314,720 resident and 10,918 non resident hunting licenses.1
During the legal turkey hunting season two brothers, J. T. and R. L. Seabolt, arrived around 6:15 a.m. in the hunting area in McDuffie County and began to wend their way along Hart Creek into the woods. As they followed the creek searching for their quarry and sounding their yelpers (female turkeys yelp while males gobble) they stopped three different times, remaining at each location approximately 15 or 20 minutes, all to no avail. They had proceeded about 2 1/2 miles into the forest when they heard turkeys so they halted and took semi-reclining positions on the sloping bank of Hart Creek from which they could see through an opening on the opposite bank. From this position they could not be seen by the hunted target but could immediately arise to assume a shooting position when gobblers were sighted. Until this time they had seen neither game nor other hunters although they had previously heard one shot fired in the distance.
Earlier, from another direction, Cheesborough, an experienced hunter who had on occasions served as an instructor in hunting safety2
, together with a companion, had entered another portion of the hunting area. Separating but maintaining communication through a walkie-talkie, they arranged a meeting place at the creek bank. (Only the necromancy of a haruspex could have prognosticated this was destined as the locale for a fateful rendezvous where the Seabolt brothers would sustain bodily wounds and Cheesborough end up unhappily as a defendant in these lawsuits.) En route to his destiny Cheesborough shot and killed a scrawny dog that was chasing a deer, this undoubtedly being the shot that had been heard by the Seabolt Brothers. Sounding his turkey caller and keeping himself hidden from the known keen sight of the birds, he saw a gobbler about 45 yards away walking toward the creek. Unknown and unseen by him the Seabolts were in the underbrush across the bank between him and his quarry. Using a .222 caliber rifle which carried a missile traveling 3,000 feet per second, he took careful aim and fired at the gobbler then about 35 yards away and walking toward the creek. The projectile went completely through the trunk of a small tree with fragments exploding to hit and wound both Seabolts. Upon discovering the calamity Cheesborough summoned his companion and they jeeped the bleeding brothers to the hospital.
Fortunately, although seriously injured, both brothers recovered. They filed these suits for their damages based on alleged negligence. The defendant's answers denied fault, averred plaintiffs had failed to exercise the required degree of ordinary care for their own safety, that their negligence was the sole and proximate cause, and that the incident and resulting injuries constituted "an accident within the meaning of the law."
The two suits were joined for trial.3
There was a contradiction between the parties as to the visibility situation. The Seabolts testified that upon being struck they sat up and could see the defendant about 45 steps away and they could see him get up. Defendant testified the undergrowth prevented his seeing them. In this he was supported by the county sheriff who investigated4
the incident and described the vegetation. The jury returned verdicts for the defendant. After their motions for new trial were overruled these appeals were brought. In addition to the general grounds of the new trial motions the enumerations of error submit the trial judge erred in refusing to include three specific requests to charge, and in charging on the law of accident, and in failing to charge comparative negligence.
2. Likewise, the trial judge recognized it would have been erroneous as invading the province of the jury to charge that request which included this language: "In the exercise of ordinary care, a hunter . . . is bound to anticipate the presence of others who might likewise be engaged in the sport of hunting, and is likewise under a duty to distinguish between hunted animals and human beings before discharging his weapon." (T. 62.)
"A trial judge may not tell a jury what acts would or would not constitute negligence unless the acts have been declared by statute to be negligence. Savannah F. & W. R. Co. v. Evans, 115 Ga. 315
, 316 (41 SE 631
, 90 ASR 116); Atlanta & W. P. R. Co. v. Hudson, 123 Ga. 108
, 109 (51 SE 29
); Watson v. Riggs, 79 Ga. App. 784
, 785 (54 SE2d 323
). It would have been better practice to charge fully the general law on the applicable standard of care without suggesting particular acts which might have been required of plaintiff [defendant in the case sub judice] to conform with that standard." Gates v. Southern R. Co., 118 Ga. App. 201
, 204 (162 SE2d 893
). In accord, Etheridge Motors, Inc. v. Haynie, 107 Ga. App. 674 (1) (131 SE2d 212)
; Hunt v. Pollard, 55 Ga. App. 423
, 427 (190 SE 71
Moreover, such request was not adjusted to the evidence. Defendant testified he aimed at a turkey, not plaintiffs. Plaintiffs themselves acknowledged they were not making any movements. "The trial court did not err in refusing to charge the jury a request to charge float was not perfectly apt and precisely adjusted to the case. [Cit.]" Crafton v. Livingston, 114 Ga. App. 161 (5) (150 SE2d 371)
; Slaughter v. Linder, 122 Ga. App. 144
, 146 (176 SE2d 450
) and cases cited therein.
3. A third request which was properly rejected sought on the basis of an inherently dangerous instrumentality to impose a greater degree of care than is required by law. The trial judge charged the general law that "Ordinary care and diligence is that care and diligence which every prudent man takes of his own property of a similar nature or that care and diligence which every prudent man would exercise under similar circumstances and like surroundings." In a comprehensive article captioned "Hunter's civil liability for unintentionally shooting another person" in 26 ALR3d 561, 567, the author says: "Although the courts have used various forms of judicial expression, it is clear that the standard of care generally imposed upon a hunter is the duty to exercise ordinary care commensurate with the peculiar circumstances of each case." The full charge by the trial judge here was in accord with this view. See also Hubbard v. United States, 295 FSupp. 524 (1969).
4. The contention that the court improperly charged the law on accident is without merit. Not only did the answer specifically plead such contention, but it was authorized by the evidence. "There was evidence to sustain a finding by the jury that neither the plaintiff nor the defendant was lacking in ordinary care. This being so, the theory of accident was involved in the case, and it was not error to give an instruction thereon." Brown v. Mayor &c. of Athens, 47 Ga. App. 820 (3) (171 SE 730)
. In accord, Holiday v. Mayor &c. of Athens, 10 Ga. App. 709
(5, 6) (74 SE 67
), and Firestone Tire & Rubber Co. v. Jackson Transp. Co., 126 Ga. App. 471 (191 SE2d 110)
"In Georgia law, it [accident] means, in connection with personal injury cases such as this, an injury which occurs without being caused by either the negligence of the plaintiff or of the defendant. The idea of accident excludes responsibility for the cause of the injury. If you find from the preponderance of evidence that the plaintiff's damages, if any, were caused by accident as I have defined the word, that is, occurred without any lack of ordinary care and diligence on the part of the plaintiff or the defendant, then the plaintiff could not recover damages . . . The plaintiff contends that the question of accident is not involved because the defendant's acts were intentional. While it is true that the defendant's acts were intentional, this would not preclude a finding that the injury was the result of an accident. Where a person, while using reasonable care, commits an intentional act which causes an unexpected injury to another person, the injury is the result of an accident. Johnson v. National Life &c. Co., 92 Ga. App. 818
, 819 (90 SE2d 36
)." Caldwell v. Knight, 94 Ga. App. 827
, 828 (96 SE2d 331
5. Although appellants have enumerated as error failure by the trial judge to include a charge on comparative negligence, it is acknowledged this omission was not called to the attention of the trial court in compliance with the provisions of Code Ann. 70-207. It is urged upon this court to exercise its right under subparagraph (c) of that Code Section to "consider and review erroneous charges where there has been a substantial error in the charge which was harmful as a matter of law, regardless of whether objection was made hereunder or not." We should hesitate to exercise this right "unless it appears that a gross injustice is about to result or has resulted, directly attributable to the alleged error." Nathan v. Duncan, 113 Ga. App. 630 (6) (149 SE2d 383)
. "Instances where the charge will be found ground for reversal under subsection (c) are likely to be very, very rare." Id., p. 638. This exception should not be applied in the instant case. See Newcomb v. Pattillo, 119 Ga. App. 495 (3) (167 SE2d 665)
In Tabor v. Fowler, 119 Ga. App. 259 (167 SE2d 220)
and Brown v. Brown, 222 Ga. 446 (150 SE2d 615)
the prerogative was exercised because of the erroneous presentation of the sole issue for decision in those cases. That does not exist here where there is considerable doubt under the pleadings and evidence as to there being any issue of comparative negligence.
In Crafton v. Livingston, 114 Ga. App. 161 (150 SE2d 371)
relied upon by the appellants there was a specific request for the judge to charge the jury on the application of the comparative negligence rule. No such request was made in the case sub judice.
6. The court did not err in overruling a motion for new trial on general grounds. "After a verdict, the evidence is construed in its light most favorable to the prevailing party, for every presumption and inference is in favor of the verdict. [Cits.]" Boatright v. Rich's Inc., 121 Ga. App. 121 (1) (173 SE2d 232)
; Dodd v. Newton, 122 Ga. App. 720 (2) (178 SE2d 567)
. "Where the trial judge approves the verdict, the sole question for determination by this court is whether there is any evidence sufficient to authorize it." Adler v. Adler, 207 Ga. 394
, 405 (61 SE2d 824
). In accord, First Nat. Bank v. Stephens, 124 Ga. App. 530
, 533 (184 SE2d 484
); Batson-Cook Co. v. R. C. Pierce Roofing Co., 124 Ga. App. 835 (186 SE2d 358)
. "In passing on the general grounds of a motion for new trial, this court passes not on the weight but the sufficiency of the evidence. It is our duty to determine whether the verdict as rendered can be sustained under any reasonable view taken of the proofs submitted to the jury." Ingram v. State, 204 Ga. 164
, 184 (48 SE2d 891
). The evidence indicated that the jury could find that each party was taking ordinary care in those particular circumstances and the injuries received through no fault of either party.
Fulcher, Hagler, Harper & Reed, William C. Reed, for appellee.