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Action for damages. Jesup City Court. Before Judge Gibbs.
JORDAN, Judge.
The court's charges to the jury on the doctrines of accident, sudden emergency and comparative negligence were authorized by the pleadings and the evidence in this case.
This was a suit to recover personal and property damages allegedly sustained by the plaintiff in a collision between his automobile and that of the defendant which was being operated by the defendant's wife as a family purpose car at the time of the collision which occurred on Cherry Street in Jesup, Georgia, on April 15, 1960. The petition alleged that the parties were driving in opposite directions on Macon Street (a street crossing Cherry Street at right angles) and both vehicles stopped in obedience to a red light at said intersection; that when said traffic light changed, plaintiff made a right turn onto Cherry Street while defendant's wife turned left onto Cherry Street immediately behind plaintiff; and the plaintiff was forced to stop his vehicle in order to avoid colliding with an unidentified vehicle which had backed into plaintiff's lane of traffic from a diagonally parked position, and while plaintiff was thus stopped, defendant's vehicle collided with the rear of plaintiff's automobile, causing the alleged damages. The petition alleged that the defendant's wife was negligent in failing to observe the plaintiff stop his automobile and in failing to have her automobile under sufficient control to avoid the collision in violation of Code Ann. 68-1626 (a).
The defendant's answer admitted the collision, but alleged that the vehicles collided with only slight force which was insufficient to cause the injuries complained of. The answer further alleged that the defendant's wife was driving at approximately 10 miles per hour and that plaintiff did not exhibit any signal indicating that he had intended to stop; and that if the collision were caused by the negligence of any person other than the plaintiff, it was caused by the person who backed out from a diagonally parked position in front of the plaintiff. In an amendment to the answer the defendant alleged that if any damages were suffered by the plaintiff, they were the result of an accident for which the defendant was not liable.
The case proceeded to trial and the jury returned a verdict in favor of the defendant. The trial court denied the plaintiff's amended motion for new trial and the exception is to that judgment and to the nunc pro tunc order of the trial court, entered February 1, 1963, which is set out in Division 1 of the opinion.
1. The bill of exceptions assigns error on the following order of the trial court, entered February 1, 1963: "It appearing to the court that the amendment to defendant's answer filed on the 25th day of May, 1962, was allowed in open court on the 30th day of May, 1962, and it further appearing that the order allowing said amendment was not entered thereon, It is ordered, nunc pro tunc, that the allowance of said amendment on the 30th day of May, 1962, appear of record in terms of law, and an order is made accordingly." It was within the authority and discretion of the trial court to enter said nunc pro tunc order under the provisions of Code 24-104 (6) and 81-1201; and this assignment of error is without merit.
2. The special grounds of the amended motion for new trial assign error on three excerpts from the charge of the court which embodied principles of law relating, respectively, to the doctrines of accident, sudden emergency and comparative negligence, it being the sole contention in each of said grounds that the charges complained of were unauthorized by the pleadings and the evidence. These grounds are without merit.
The issue of accident was raised by the defendant's answer and that of sudden emergency by the pleadings of both parties; and under the evidence the jury was authorized to find that the plaintiff was confronted with a sudden emergency when the driver of a parked automobile backed his vehicle into the plaintiff's lane of traffic and that the defendant's wife was under the compulsion of emergency, not caused by negligence on her part, when the plaintiff, without giving warning, suddenly stopped his automobile in front of her; and that as to the plaintiff and defendant in this case, the cause of the occurrence was an accident, that is, "a happening which, although not wholly free from negligence by some person, was not proximately caused by a failure of either of the parties to a case to exercise ordinary care in the situation." Baggett v. Jackson, 79 Ga. App. 460 (1, 2) (54 SE2d 146); Pickering v. Wagnon, 91 Ga. App. 610 (3, 4) (86 SE2d 621); Whitfield v. Wheeler, 76 Ga. App. 857 (47 SE2d 658).
The defendant in his answer further alleged that the plaintiff was negligent in suddenly stopping his automobile without giving signal or warning and that the negligence of the plaintiff was greater than the negligence of the defendant, if any; and as in the Jackson case, supra, (hn. 3), the evidence was also subject to this construction by the Jury, and authorized the charge on comparative negligence.
3. The evidence authorized the verdict rendered and the general grounds of the motion for new trial are without merit.
Judgment affirmed. Nichols, P. J., and Frankum, J., concur.
Thomas, Howard & Moran, Ernest A. Moran, contra.
Ronald L. Adams, for plaintiff in error.
DECIDED JUNE 14, 1963.
Friday May 22 22:07 EDT

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