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Action for damages. Lyons City Court. Before Judge Darby.
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 there right at some distance away, which played no part in the ensuing event.
The intersection was located near a school, and the 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.
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 SE2d 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 SE2d 855), 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 who 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 cross the intersection. She either misjudged the distance between her and defendant's car or she misjudged his speed. Consequently, the jury may have found that in this she was contributorily negligent, even to the extent of failing to exercise ordinary care for her own safety. Brown v. Sanders, 44 Ga. App. 114 (160 SE 542). But under these facts that is a jury question and the court was not authorized to conclude from this evidence that she intelligently acquiesced in a danger of which she was aware--thereby assuming the risk of whatever might happen in so doing.
Upon a retrial of the case the court and counsel should consider, relative to the matter of school zones, Grant v. McKiernan, 82 Ga. App. 82, 86 (2) (60 SE2d 794); Whitley Construction Co. v. Price, 89 Ga. App. 352 (1) (79 SE2d 416); and relative to stop signs at street intersections, Hennemier v. Morris, 48 Ga. App. 840 (173 SE 924); Richardson v. Coker, 78 Ga. App. 209 (50 SE2d 781); Gatewood v. Vaughn, 86 Ga. App. 823 (72 SE2d 728); Barnett v. Whatley, 87 Ga. App. 860, 864 (3) (75 SE2d 667); Sitton v. Camp, 91 Ga. App. 870 (87 SE2d 430); Associated Cab Co. v. Byars, 92 Ga. App. 73, 74 (2) (88 SE2d 329); Noland v. England, 101 Ga. App. 306 (2) (113 SE2d 649); Fields v. Jackson, 102 Ga. App. 117, 125 (3) (115 SE2d 877); Johns v. Secress, 106 Ga. App. 96 (126 SE2d 296); Blanton v. Doughty, 107 Ga. App. 91, 93 (1) (129 SE2d 376); Wallace v. Willis, 111 Ga. App. 576, 578 (2) (142 SE2d 383); Strong v. Palmour, 113 Ga. App. 750 (1) (149 SE2d 745); and Tyson v. Shoemaker, 208 Ga. 28 (65 SE2d 163), reversing Tyson v. Shoemaker, 83 Ga. App. 33 (62 SE2d 586); and relative to the duty of a motorist to approach an intersection attentively, Richards & Associates v. Studstill, 92 Ga. App. 853 (1) (90 SE2d 56), reversed on other grounds in Richards & Associates v. Studstill, 212 Ga. 375 (93 SE2d 3), and relative to the duty of awaiting the clearance of traffic that would constitute an immediate hazard before entering an intersection, Hillhouse v. C. W. Matthews Contr. Co., 112 Ga. App. 73 (143 SE2d 686); Sandefur v. Miller, 114 Ga. App. 279 (151 SE2d 169), and relative to the matter of making new parties to a suit at law Code 81-1303; Lumbermens Mut. Cas. Co. v. Moody, 116 Ga. App. 2, 6 (2); Miles v. Wilson, 212 Ga. 60 (90 SE2d 568); 1 insofar as these cases, or any of them, may be relevant to the issues as presented by the pleadings and the evidence.
The case should have been submitted to the jury, with appropriate instructions relative to the matters of negligence and comparative negligence.
Judgment reversed. Felton, C. J., and Hall, J., concur.
1  But see 21 and 86 of the Georgia Civil Practice Act (Ga. L. 1966, p. 609, et seq.), as amended (Ga. L. 1967, p. 226, et seq.) effective September 1, 1967 (Ga. L. 1967, p. 8).
Sharpe, Sharpe & Hartley, T. Ross Sharpe, for appellees.
William T. Whatley, for appellant.
Friday May 22 19:48 EDT

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