1. It is error to couch a charge in language which results in the placing of an absolute duty upon the defendant in a situation under which he is bound only to the exercise of ordinary care.
2. A lay witness is not competent to give what amounts to a medical opinion relative to his injuries or the effect thereof.
This is an action to recover damages for alleged whiplash injuries, loss of ability to perform conjugal duties and medical expenses. Plaintiff alleged that he was driving a truck in the stream of traffic, stopped it at a street intersection and while stopped was struck in the rear by defendant's taxicab, causing him to suffer the injuries.
Pending the action plaintiff died, and his administratrix was substituted as the party plaintiff. The case came on for trial before a jury, and plaintiff's evidence disclosed that he had stopped at a controlled intersection, the traffic light being red; that ahead of him were two other vehicles, which, when the light changed to green started moving forward; that the car immediately ahead, being an old model, choked within three or four feet, requiring that all vehicles to its rear come to an immediate halt; that plaintiff stopped before striking the vehicle ahead of him, but that defendant's taxicab struck plaintiff's rear end. The driver of the cab testified that he, like the others ahead, had stopped for the red traffic light, and that upon the change to green all vehicles started moving forward, including the cab, but that the plaintiff's truck stopped with such suddenness that he was unable to stop in time to avoid striking it in the rear.
Enumerations of error which are not argued in appellant's brief are deemed to have been abandoned.
The exception is that the charge places an absolute duty on the motorist to stop or be able to stop under any and all circumstances, when the true rule is that he is required to exercise ordinary care and drive his vehicle in the manner of an ordinarily prudent man.
The exception is meritorious. The charge places the duty on the motorist to drive "so that he can avoid a collision, or can turn out sufficiently to pass." Generally the exercise of ordinary care will enable him to do that, but whether there is a collision or whether he can turn out sufficiently to pass is not wholly dependent upon his actions. He may be unable to do either, even though he is in the exercise of ordinary care. Actions of other drivers, road hazards and other matters may intervene and bring about a collision with the car ahead or with another vehicle, when the defendant is without fault, or only partly at fault.
Neither Code Ann. 68-1641 nor 68-1626 "nor any other provision of law of which we are aware, places an absolute duty on any driver to avoid a collision. All the circumstances and conditions at the time and place, including the conduct of other drivers, must be taken into account." Flanigan v. Reville, 107 Ga. App. 382 (2) (130 SE2d 258)
. Accord: Davenport v. Robinson, 109 Ga. App. 753 (137 SE2d 380)
; Attaway v. Morris, 110 Ga. App. 873 (5) (140 SE2d 214)
. The Uniform Act Regulating Traffic on Highways (Ga. L. 1953, Nov. Sess., p. 556, et seq.), as amended, "imposes certain statutory duties upon drivers of automobiles, with reference to persons and property using the highway in the ordinary course of travel. These are cumulative, and do not destroy the common law duties of drivers of automobiles relatively to persons and property using the highway. The duty at common law of a driver of an automobile, relatively to persons and property on the highway, is to exercise ordinary care to avoid injuring them . . . 'The standard of ordinary and reasonable care is invariable, such care being that of every prudent man . . . But the care of a prudent man varies according to the circumstances, dependent upon the degree of danger.' " Giles v. Voiles, 144 Ga. 853 (1)
In Giles the Supreme Court dealt with a charge that "The degree of diligence which must be exercised in a particular exigency is such as is necessary to prevent injuring others," which was held to have been too broad in its requirement, just as we find to be the case here. The court had also charged (as had been held in Denson v. Ga. R. & Elec. Co., 135 Ga. 132 (68 SE 1113)
) that "A power company in furnishing electricity to patrons, with respect to employees of the latter rightfully upon the premises of the patron and likely to come into contact with wires carrying the current supplied, is bound to use ordinary care, which demands that the power company shall use such diligence in preventing injuries to such employees as is commensurate with the danger involved in the use and control of such a subtle and deadly agency as electricity," and this the court disapproved, asserting that "The excerpt from the charge excepted to purported to state the rule of care which the law exacted of the defendant, but in doing so stated the rule too strongly against the defendant . . . the court informed the jury that [the defendant] was bound to a degree of diligence which would prevent injury to the plaintiff. This, in effect, imposed upon the defendant the duty of observing the diligence required of an insurer, and eliminated all such questions as accident, contributory negligence, and the duty of the plaintiff to exercise ordinary care to avoid the consequences of the defendant's negligence. It was the equivalent of instructing the jury that it was the duty of the defendant to avoid injury to plaintiff's property at all events." We find the same criticism appropriate relative to this charge.
2. Prior to plaintiff's death his deposition was taken and was used at the trial. On direct examination plaintiff's counsel asked him: "As a result of the accident which you were involved in on January 27, 1964, has that affected your sex life in any way?"
Defendant objected to the question and to the answer sought from the plaintiff on the ground that it called for a medical opinion from a lay witness, who was not competent to give one. The objection was overruled and plaintiff answered, "Definitely so, yes."
He was also asked: "Would you say that the injuries you received on January 27, 1964, have aggravated to any extent any other injuries which you had prior to that time?"
The same objection was interposed to this question and it was overruled, whereupon plaintiff answered: "[None] other than the discomfort I've had to suffer ever since that thing happened, the loss of the use of this hand, and not being able to perform my normal duties."
These questions an answers come within the proscription of Atlanta Street R. Co. v. Walker, 93 Ga. 462 (21 SE 48)
; Cone v. Davis, 66 Ga. App. 229
, 236 (17 SE2d 849
); Hamby v. Hamby, 103 Ga. App. 826
, 832 (121 SE2d 169
), and others of like tenor, holding that a layman is not competent to give such opinion. As was asserted by Chief Justice Bleckley in Atlanta Street R. Co. v. Walker, supra, "The plaintiff was competent to testify to his feelings, pains and symptoms, as well as to all the characteristics of the injury, external and internal. This was the limit of his competency, and any opinion legitimately arising out of the facts could be more safely formed by the jury than by him." He could testify that there had been a decrease in his sexual activity since the accident, but as to whether or not the decrease was caused by the injuries received in the accident a medical opinion was required.
This testimony should have been excluded.
3. Defendant excepts to the verdict as being excessive, but since we are reversing the case and sending it back for another trial in which the result may be altogether different, we find it unnecessary to pass upon this exception.