Opinion
33437.
DECIDED MARCH 15, 1951.
Action for damages; from Fulton Civil Court — Judge Parker. December 4, 1950.
Jess H. Watson, for plaintiff.
Dunaway, Howard Embry, for defendant.
1. The evidence is sufficient to sustain the verdict.
2. Under the facts of this case, the court did not err in permitting counsel for the defendant to propound to the plaintiff a question as to whether the plaintiff had assigned his claim to an insurance company and permitting the plaintiff to answer "No."
3. When one is confronted with a sudden peril or emergency, not created by any fault of his own, the requirement of such a one is ordinary diligence under all the facts and circumstances surrounding the situation. This is a jury question. What might be negligence under one set of circumstances, where there is no such peril or emergency, might not be negligence under another set of circumstances where there is a sudden peril or emergency.
DECIDED MARCH 15, 1951.
The amended petition of James Clackler alleges that Ellen M. Barnwell is indebted to him in the sum of $700 by reason of the negligence of the daughter of the defendant backing the defendant's automobile into the plaintiff's automobile. It is alleged: that the incident occurred where Peachtree Street runs generally in a northwardly and southwardly direction and where Peachtree intersects Tenth Street in the City of Atlanta; that on the date of the incident the plaintiff was driving a Nash automobile in a westwardly direction on the right side of Peachtree Street east of the intersection of Peachtree and Tenth Streets; that, immediately preceding the plaintiff, the daughter of the defendant was driving the defendant's Hudson Sedan automobile; that the driver of the defendant's automobile had proceeded into Peachtree Street, when she suddenly stopped the Hudson automobile without signal or warning, and backed into and collided with the right front section of the plaintiff's automobile; that the impact was done with such force and speed that the plaintiff was unable to avoid the collision; that the plaintiff was at all times in the exercise of ordinary care and diligence; and that the plaintiff's car was severely damaged in the particulars alleged. The plaintiff pleaded a Code section of the City of Atlanta to the effect that a driver of a vehicle shall not back the same until such movement can be made in safety, and that such backing shall be done at a speed not to exceed five miles per hour nor for a greater distance than sixty feet, and never into an intersection.
The specifications of negligence alleged by the plaintiff were: (a) in striking and colliding with the petitioner's automobile; (b) in operating such automobile in violation of the city ordinance, the same being negligence per se; (c) in failing to exercise ordinary care to avoid striking the petitioner's automobile; (d) in failing to give any signal or warning before driving into and against the petitioner's automobile.
The defendant answered, denying all the material allegations of the petition, and in due course further pleaded substantially that the proximate cause of the injury and damage complained of by the plaintiff was the negligence of the plaintiff in failing to have his automobile under control so as to be able to stop and not run into the rear of the defendant's automobile, which had stopped to let a pedestrian cross from the west to the east across Peachtree Street at said time and place set forth in the petition of the plaintiff.
The evidence was in conflict. The plaintiff's evidence was to the effect that the daughter of the defendant backed the defendant's automobile into the plaintiff's automobile; and the evidence for the defendant was to the effect that the daughter of the defendant did not back the automobile at all, but that the plaintiff ran his automobile into the rear of the defendant's automobile simultaneously when the defendant's daughter stopped her car to keep from striking a pedestrian crossing Peachtree Street. The daughter testified that, when she approached Peachtree Street from the east, the traffic signal was red; that she stopped the defendant's car until the light turned green, at which time she turned northward into Peachtree Street; and that a pedestrian "darted" out in front of her.
The jury returned a verdict in favor of the defendant. The plaintiff filed a motion for a new trial on the general grounds and thereafter in due course added two special grounds. The court overruled the motion. It is on this judgment that the plaintiff assigns error here.
1. The evidence is sufficient on behalf of the defendant to sustain the verdict.
2. The first special ground of the motion for a new trial complains that the court committed reversible error in allowing counsel for the defendant to question the plaintiff concerning insurance, by asking him if he had not assigned his claim to the Bankers' Indemnity Insurance Company, and in so doing, permitted the injection of the question of insurance, which the plaintiff might have held and which was wholly irrelevant and immaterial and highly improper. When the question was propounded to the plaintiff, his attorney stated in effect that he felt that they were going into something that was very improper, and that the jury should be retired. The court retired the jury and a colloquy followed between the counsel for both parties and the court with reference to the question. It was ascertained in the absence of the jury that the plaintiff had not assigned his insurance policy. Thereafter, the jury returned to the jury box and the trial proceeded in the presence of the jury. The following question was presented to the plaintiff: "Have you ever assigned your claim to the Bankers' Indemnity Insurance Company?" The plaintiff answered, "No, sir." The attorney for the plaintiff made no further objection at all, and asked for no particular instructions from the court on this point. In this connection it is well to note that the defendant did not file any cross-action. We fail to see, regardless of whether or not the plaintiff objected to the question and answer, how it could have resulted in harm to the plaintiff. See, in this connection, Chapman v. Independent Laundry Co., 38 Ga. App. 425(2) (144 S.E. 127); Lamon v. Perry, 33 Ga. App. 248, 250 ( 125 S.E. 907). When this insurance proposition was first brought into the case, the plaintiff made no proper objection, and after the jury had returned made no objection to the question and answer. See Kuusisto v. Wilkins, 56 Ga. App. 405 ( 192 S.E. 639). See also Bailey v. Ogden, 75 Ga. 874; Holtzendorf v. McNeil, 25 Ga. App. 792(2) (104 S.E. 919). The last three cases just above cited add up to the proposition of procedural law that the plaintiff in the instant case, having failed to make a legal objection when the question was first propounded, or having failed to renew the objection when it was later asked, lost his right to object. We are not unmindful of the numerous decisions of our appellate court that generally it is reversible error to inject in a case seeking damages that the defendant had insurance to satisfy such judgment as the plaintiff might obtain against him. This same ruling would apply where the defendant filed a cross-action against the plaintiff. Cases to such effect are entirely different from the question with which we are dealing here, and the many cases cited by counsel for the plaintiff are not in line with the facts of this case. There is no merit in this contention.
3. The plaintiff complained in special ground 2 of an excerpt from the charge of the court on the doctrine of emergency, as follows: "If you find from the evidence that the plaintiff drove into the defendant's car by reason of the defendant's agent having to stop suddenly in order to keep from hitting a pedestrian, I charge you that, under those circumstances, the defendant would not be guilty of negligence under the law." In order to get a clear view of this assignment of error, we think it but proper to give the court's entire charge on the principle under consideration, as follows:
"You are instructed that in considering the question as to whether the defendant was in the exercise of ordinary diligence, you may consider the fact as to whether there was an emergency which might require quick action in order to avoid injury or loss of life to human beings. The law adopts this definition of ordinary diligence, but in instances occurring in human experience, what might be negligence under one set of circumstances, where there is no emergency, might not be negligence under another set of circumstances, where there is an emergency. The defendant's agent contends that she was forced, by reason of the sudden appearance before her of a pedestrian in the cross-walk, to stop suddenly in order to avoid striking this human being, and that in this emergency immediate action was required. The jury is to pass upon the question of whether the defendant's agent, under the circumstances, was in the exercise of ordinary diligence. If the defendant's agent, in view of an emergency, and under the circumstances, acted as an ordinarily prudent person would act under the same or similar circumstances, including an emergency, then she would not be negligent in suddenly stopping; otherwise, it is a question for you to determine whether she was or not.
"That charge is given you on the defendant's theory of the case, in which she contends that her agent had to stop suddenly and that while she was stopped plaintiff drove his car into the rear of her car, causing the damage in question. That is denied by the plaintiff. The plaintiff contends that he did not drive into the defendant's automobile, but that the defendant's agent backed her car into his car. That is a question of fact for you to determine from the evidence."
Then follows the excerpt on which error is assigned. The plaintiff contends that this charge was a misstatement of the law and was harmful and prejudicial to him. It is contended in the argument by counsel for the defendant that there are no pleadings or evidence in the record to support the charge. With this contention we disagree. The defendant amended her answer setting up that the defendant's agent stopped the automobile to avoid running into or over a pedestrian who suddenly appeared in the cross-walk in front of the defendant's automobile. This is a sufficient allegation in the defendant's answer to authorize the defendant to produce evidence that she stopped as she did for the protection of human life, and also to authorize the evidence on behalf of the defendant that the plaintiff was following negligently so close behind the defendant's automobile that he could not or did not stop his automobile, and simultaneously struck with great force the defendant's automobile, and that by reason thereof the negligence of the plaintiff, and not that of the defendant, was the proximate cause of the damage to the plaintiff's car. See Cone v. Davis, 66 Ga. App. 229 (2, 3) ( 17 S.E.2d 849), in which the principle of emergency is fully dealt with. There was no special request for any additional or further charge on the principle of emergency. We cannot bring ourselves to the conclusion that the charge of the court, under the record of this case, was erroneous as contended in this special ground.
The court did not err in overruling the motion for a new trial for any of the reasons assigned.
Judgment affirmed. MacIntyre, P.J., and Townsend, J., concur.