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DAVENPORT et al. v. ROBINSON by Next Friend.
Action for damages. Floyd Superior Court. Before Judge Scoggin.
BELL, Presiding Judge.
In this case the extract from the charge to which complaint was brought in the special ground of the motion for new trial was addressed to the primary issue of liability which had been raised by the pleadings and the evidence. It expressed legal truths bearing impartially on the defendant and on the plaintiff. In this status the trial judge properly included the extracted portion of the charge in his instructions to the jury.
The plaintiff, Robinson, sued Stevens Funeral Home, Inc. and its agent, Davenport, for alleged damages received in an automobile collision. The vehicle driven by Robinson was struck from the rear by an automobile belonging to the funeral home and being driven by the agent. The case proceeded to trial and a verdict and judgment in the amount of $650 was awarded the plaintiff against the defendants.
The agent, Davenport, testified that the car driven by the plaintiff "changed from one lane to another . . . it changed from the curb lane to the lane towards the center line. Then that put me immediately in behind this car in the same lane. I didn't actually see it stop. I had hit it when I knew it stopped. I had followed the car probably 50 or 75 feet. I followed him past the intersection . . . where the collision actually occurred. I didn't see the car stopped. I was looking off up the other street somewhere. I was looking . . . to ascertain if there was any traffic; and there was no traffic. And the first I knew that I was about to hit it, or had hit, I had hit it."
The plaintiff, Robinson, testified: "As I approached this intersection, there's a yield sign there, and I yielded. There was traffic coming . . . and I yielded, and there was too much traffic for me to go on, so I stopped. I stopped. And he hit me from the rear. Whether, as I came to this intersection, I gave any signal of my intention to stop, no hand signals. The lights on the Renault were working, the brake lights." The plaintiff did not testify that he applied the brakes so as to engage the brake lights.
The plaintiff filed a motion for new trial which consisted of the general grounds and three special grounds. Following the hearing on the motion, the trial judge granted a new trial on one special ground only. The defendant excepted to the grant of the new trial on the single special ground. No cross bill of exceptions was entered by the plaintiff.
For a verdict to have been reached on the trial of the case, either for the plaintiff or for the defendant, the first essential detail the jury had to bring to a conclusion was the issue on liability. Liability in this case rested solely on the jury's determination as to who was at fault in this rear-end automobile collision. The issue was raised by the pleadings and there is in the record at least some evidence addressed to the problem.
"I charge you that the law of Georgia also states that all drivers of vehicles using the highways are held to the exercise of due care. A leading vehicle has no absolute legal position superior to that of one following. Each driver is required by law to exercise ordinary care in the situation in which he finds himself. The driver of the leading vehicle must exercise ordinary care not to stop, slow up, nor swerve from his course, without adequate warning to the following vehicle of his intention to do so. The driver of the following vehicle in his turn must exercise ordinary care to avoid collision with vehicles, both in front and those behind him. The mere fact that one vehicle is struck in its rear, while another is not struck, is not in and of itself sufficient to fix liability on the driver of either vehicle." (The emphasis is ours and is used merely to identify the portions of the paragraph which were not contained in the special ground.)
This instruction, it is to be seen, is derived almost verbatim from a previous decision of this court delivered in an automobile rear end collision case. Hay v. Carter, 94 Ga. App. 382, 384 (94 SE2d 755). Having been approved by the court and standing unreversed, there can be no question that it depicts a correct statement of the law.
In this case the extract was addressed to a primary issue which had been raised by the pleadings and the evidence. It expressed legal truths bearing impartially on the defendant and on the plaintiff. In this status the court properly included the extracted portion of the charge in its instructions to the jury. Brown v. Matthews, 79 Ga. 1, 7 (2) (4 SE 13).
The trial court erred in granting the plaintiff's motion for a new trial on the special ground.
Judgment reversed with directions to trial court that the final judgment for the plaintiff in the amount of $650 be reinstated. Jordan and Eberhardt, JJ., concur.
E. J. Clower, contra.
Fullbright & Duffey, Harl C. Duffey, Jr., for plaintiffs in error.
DECIDED MAY 21, 1964.
Friday May 22 21:34 EDT

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