Opinion
40413.
DECIDED MARCH 2, 1964. REHEARING DENIED MARCH 31, 1964.
Action for damages. Fulton Superior Court. Before Judge Whitman.
Johnson, Meyerson Montet, Stanley Meyerson, Harvey A. Clein, for plaintiff in error.
Charles D. Hurt, J. Corbett Peek, Jr., contra.
1. Unless the verdict was demanded by the evidence the special grounds in a motion for new trial must be considered.
2. Where a wife, who while an occupant in her husband's automobile was injured when another vehicle collided with the rear of the husband's car, made timely request for a charge to the effect that she was not barred from recovery by any imputation of negligence from her husband, and that even though he should be found to have been guilty of joint concurring negligence that was the proximate cause of her injury it would neither bar her right to recover nor constitute a basis for reducing her damages, if any, it was error to refuse it.
3. Even though plaintiff, a guest in an automobile, was not herself negligent, in her suit against a third party who struck the vehicle from behind and caused her injury she is entitled to have the court charge the jury the principle that if the defendant, seeing the plaintiff in a position of peril, had an opportunity by the exercise of reasonable care and prudence to save her, it was the defendant's duty to do so, and if he failed to do so and the failure was the immediate proximate cause of the injury to the plaintiff, she may still recover.
4, 5, 6. Other grounds complaining of alleged errors in the charge as given are without merit.
DECIDED MARCH 2, 1964 — REHEARING DENIED MARCH 31, 1964.
Mrs. Jack Hirsch brought suit against Clifford Chapman alleging that on March 9, 1960, when there were two to three inches of snow on the streets of Atlanta she was riding as a guest passenger in a car owned and operated by her husband; that there was a pair of ruts in the snow in each direction wherein automobiles were driven along Lenox Road; that she suggested to her husband that he should obtain a set of tire chains from the Gulf filling station and that as they came to it, for the purpose of inquiring as to the availability of chains, he slowed down from a speed of about 10 miles per hour to a stop in the street, he being unable safely to turn the car out of the ruts in the snow; that shortly after her husband stopped his car another driven by Chapman and approaching from the rear struck the rear of her husband's car with great force causing her to be tossed about and injured; that defendant saw the Hirsch car stopped when he was approximately 150 feet behind it and at a time when he was traveling at a speed of about 12 miles per hour, but that he failed (a) to yield the right of way to the automobile of her husband as required by § 30.45 (d) of the Code of the City of Atlanta, (b) to control the movement and direction of his vehicle after seeing the Hirsch car stopped ahead at a distance of 150 feet, (c) to control the direction and movement of his car under all of the existing circumstances so as to avoid striking the Hirsch car, (d) to operate his automobile at a speed that was reasonable under all of the circumstances, including the condition of the road, whereby he was unable to stop it before striking the Hirsch car, in violation of Code Ann. § 68-1626 (a, c), and that he was negligent in driving his automobile into the vehicle in which plaintiff was riding as a guest, under all the facts and circumstances.
The defendant denied all allegations of negligence and alleged that the sole proximate cause of plaintiff's injuries, if any, was the negligence of the driver of the car in which she was riding, and further that the matter was the result of a pure accident, unmixed with negligence on the part of either plaintiff or defendant.
On a trial of the case before a jury plaintiff testified that when her husband stopped his car on Lenox Road opposite the Gulf service station and as they approached Pace's Ferry Road she immediately rolled the car window down and asked an attendant of the station whether they had tire chains for sale. Just as he answered in the affirmative "all of a sudden I had a jolt and the car behind had hit us." As to what time intervened between the stopping of her husband's car and the jolt from the hitting of it by a car from behind, she estimated it to have been 8 to 10 seconds. There was no oncoming traffic from the opposite direction, but there were tracks or ruts in the snow made by traffic traveling in both directions. They were traveling slowly because of the snow but her husband had no difficulty in stopping.
The husband testified: I was driving along Lenox Road proceeding very slowly and cautiously, staying in the ruts that traffic had made in the snow. They were 2 to 3 inches deep. At the suggestion of my wife, who was riding with me, I slowed to a stop opposite a Gulf service station as we approached Pace's Ferry Road to inquire about some tire chains. Some 7 to 11 seconds after I had stopped we were struck from the rear. There was a sudden jolt. I had my foot on the brake. My car was not knocked very far. It was not damaged much. The bumper and tail light were hit. My car was equipped with stop lights that came on when the brakes were applied, which, so far as I know, were working. I gave no hand signal. The car windows were rolled up. It was cold. Prior to stopping I was traveling along Lenox Road somewhere between 10 and 20 miles per hour. The grade of the street is level or almost so at the point of impact. It may be a little upgrade. Before reaching that point there is a slight downgrade. I did not turn out of the ruts before coming to a stop. I kept glancing back as I was slowing to stop. I saw a car coming behind. It was a pretty good piece behind, but the distance is difficult to judge in the rear-view mirror. The tail light of my car was broken in the collision. Mr. Chapman's car was damaged considerably more than mine. I was surprised to see that it was damaged by what had seemed to be such a slight jolt. Prior to the accident my wife was a very active person, but since she has been able to do very little and has been hospitalized a great deal of the past two years. The police were called to the scene, and after they came my wife and I went on to work.
Charles Long, an attendant at the Gulf station, testified: The Hirsch car stopped for information and I heard a lady's voice call out, after which the rear-end collision occurred. The impact was directly in front of the pump island of the station, which is about midway between the two entrance ramps. The snow was solid, but not too deep except in drifted areas. There were four ruts in the street — two for each direction of traffic. We had cleared our station driveways of the snow, but it banked up in front where the cars had thrown it back, and snow had drifted against the curb. There was very little traffic that morning. I saw the Chapman car as I looked up [after the lady had called out asking about tire chains]. It had passed the point where our entrance driveway starts and was sliding into the curb. It was sliding along. He had already turned to the right and was sliding at a sort of an angle. He cut to avoid hitting the car in front, cut out of the ruts and his left front hit the right rear of the Hirsch Plymouth. The front wheels had gotten out of the rut, but the rear wheels were still in them. I couldn't estimate his speed on the snow, but he was sliding. He had started turning right to try to avoid hitting the car.
Clifford Chapman, the defendant, was called by plaintiff for cross examination and testified: As I was driving along Lenox Road at about 11:40 in the morning, driving easterly toward Pace's Ferry Road I saw a car parked in the road near a Gulf service station. When I saw that the car was parked I was about 150 feet back of it and traveling about 12 miles per hour. My car collided with the rear of the parked car. My bumper went under his and that's how I got the damage — a bent grill, hood and left front fender. My headlight hit his tail light. Two of my wheels had come out of the ruts when I hit the other car, but I couldn't mount the ruts with the others. The Gulf people had cleared their driveways or entrances of the snow so that you could get in there. The street was still covered with it. The impact was dead center between the station driveways.
1. The verdict for the defendant was authorized by the evidence and the general grounds of the motion for new trial are without merit, but unless we can conclude that it was demanded a consideration of the special grounds becomes necessary. Since the evidence discloses that when the defendant was 150 feet away and traveling at a speed of only 12 miles per hour, he did observe that the Hirsch car was stopped ahead, we cannot say that the jury was bound to find that he could not, in the exercise of ordinary care, have brought his car to a stop before reaching and colliding with the rear of the Hirsch car. There is no evidence indicating what, if any, effort the defendant may have made to avoid colliding with the Hirsch car, save that his front wheels were turned to the right out of the ruts in the snow. There was a duty upon him to exercise ordinary care in avoiding a collision from the time he saw it parked in the street. The jury might have concluded from the fact that he was 150 feet away and traveling at only 12 miles per hour when he became aware of this situation and yet failed to avoid colliding with the car ahead the defendant was not in the exercise of ordinary care, and if they had done so we should have concluded, just as we do as to the verdict actually rendered, that the evidence was sufficient to support the verdict. Consequently, we move to a consideration of the special grounds.
2. In ground 4 error is assigned upon the refusal of the court to give all of a requested charge. The request was in two paragraphs, one to the effect that the negligence of a husband is not, by virtue of the relationship of husband and wife, imputable to the wife. That was given as requested. The other paragraph requested was: "I further charge you that if the husband was negligent, as to which the court expresses no opinion, and if any such negligence was the joint concurring cause of the injury to the plaintiff, if any, the plaintiff would not be barred by virtue of any imputation of negligence of her husband; nor under such circumstances would this constitute any basis for reducing the damages, if any, which you might otherwise find the plaintiff wife was entitled, as to which latter I express no opinion."
The jury might well have concluded that plaintiff's husband here was negligent in the stopping of his car in the street, or that his manner of so doing was in some respect negligent. But we think, as we have indicated above, that they may also have concluded that the defendant was negligent in failing to bring his car to a stop before colliding with the Hirsch car, or in some other manner avoiding a collision with it. In that situation, unless they should conclude that the husband's negligence was the sole proximate cause of plaintiff's injury it must follow that his negligence may have been a joint concurring cause. Since this is a reasonable probability under the evidence before the jury here, we think that the request was proper and that the court erred in refusing to give it. The request, though in two paragraphs and stating two principles of law, is not defective for that reason under the facts here because both are correct and applicable statements of principles and the second paragraph and principle (not given) is dependent upon and related to the first. The two are not conflicting, and both are correct, pertinent and proper. Nor are they "commingled and confused in the same sentence" as in Childers v. Ackerman Const. Co., 211 Ga. 350, 352 (1) ( 86 S.E.2d 227).
3. In ground 5 error is assigned upon the refusal of the court to charge, upon proper request: "The doctrine of last clear chance is utilized in the State of Georgia. Thus, if you find that the plaintiff's husband may have been guilty of negligence which contributed to the accident and the injury by putting his wife in a position of peril, as to which the court expresses no opinion, yet if thereafter the defendant, seeing the position in which the plaintiff was, had an opportunity by the exercise of reasonable care and prudence to save her from the consequences of her husband's negligence, it was the defendant's duty to do so, and if he failed to do so and that was the immediate proximate cause of the injury to the plaintiff, she may still recover by reason of what is called the last clear chance doctrine."
It is to be noted that the court did charge on three separate occasions that if the driver of plaintiff's car (her husband) was negligent and his negligence was the sole proximate cause of her injuries, she could not recover. Additionally he charged that if the husband's failure to give warning of his intention to stop was the sole proximate cause of her injury or if the plaintiff failed to carry the burden of proving that her injuries were proximately caused by the defendant, she could not recover, and that the mere fact that an automobile skids on a slippery pavement does not in and of itself constitute negligence.
The defendant's primary contention was that he skidded into it because he did not have time to stop or turn out and avoid the vehicle in which plaintiff was riding. The plaintiff's primary contention was that he might in the exercise of ordinary care have done either of these things. Her view is well supported by the distance away that defendant saw plaintiff's automobile, his slow speed, and the cleared entrance way to the service station which he passed prior to the point of impact.
In this view of the evidence, and especially after the reiteration by the court of circumstances under which the plaintiff could not recover, it would be a proper statement of the law and perhaps necessary to an unbiased exposition of it, to add at some point the principle of this requested charge.
In Georgia Automatic Gas Co. v. Fowler, 77 Ga. App. 675, 679 ( 49 S.E.2d 550), the court approved an instruction that "if . . . the driver of the car in which the plaintiff . . . was riding was negligent and by his negligence placed the plaintiff . . . in peril, and that such position of peril were known or in the exercise of ordinary care should have been known to defendant's driver, and defendant's driver then and there was negligent in any one or more of the particulars alleged in plaintiff's petition, then plaintiff would be entitled to recover," holding the instruction correct because "the charge on which error is assigned is an application of the last clear chance doctrine to the evidence in the case." The allegations of negligence in this petition are following too closely, failing to yield the right of way, failing to keep a proper lookout ahead, driving into the automobile occupied by the plaintiff, and failing to stop the car before striking it.
It has often been said that there is no magic in nomenclature. The plaintiff was entitled to have the principle of law here requested given in charge, and the fact that she called it last clear chance does not destroy the effect of the principle; it is exactly what this court has done on many occasions. Perhaps it would be better and maybe less confusing to the jury if the technical legal phrase "last clear chance" were not used in the charge. In Atlantic C. L. R. Co. v. Coxwell, 93 Ga. App. 159 ( 91 S.E.2d 135), it was finally made clear that last clear chance does not apply against a non-negligent plaintiff. There is danger that by thinking in terms of semantics we will arrive at the conclusion that the rule of law which we have tagged last clear chance does not exist in any form, and thus confuse superseding cause with concurrent negligence. Specifically, prior to Coxwell the non-negligent plaintiff had to take a choice between the tortfeasor guilty of the original negligence which placed him in a position of peril and the subsequent negligence of another tortfeasor who injured him by failing to avoid that peril. If he chose to sue the original tortfeasor and it was shown that another failed to avoid, that failure was considered a superseding and therefore sole proximate cause insulating the first. We should not go equally far in the other direction — holding that the original tortfeasor is the sole proximate cause of the injury, and that the negligence of the second tortfeasor who failed to avoid need not be taken into account.
4. In ground 6 error is assigned upon a portion of the charge in which the court called the attention of the jury to the provisions of Code Ann. §§ 68-1647 (c) and 68-1648 (a), dealing with the requirement that any driver of a vehicle on the public highways or streets must, upon stopping or suddenly decreasing his speed, give appropriate signal either by means of the hand and arm or signal lamps or mechanical devices. There was testimony to the effect that plaintiff's husband, although giving no arm signal, was driving a car equipped with signal lamps on the rear which he had reason to believe, but could not swear, were in working order. Under this evidence the charge was appropriate.
5. In ground 7 error is assigned upon a portion of the charge defining "accident" and outlining to the jury the theory of accident as being an occurrence without fault or negligence and which excludes responsibility for the cause of the injury. The charge on this subject was full and, as a statement of the law, was correct. Although the evidence indicating that the collision between the car in which plaintiff was riding and the defendant's vehicle may have resulted from an accidental means or cause was sparse, yet we think that the testimony of the only eyewitness in position to make the observation that when he looked up and saw it the defendant's car "had passed the point where our entrance driveway starts and was sliding into the curb. It was sliding along. He had already turned to the right and was sliding at a sort of an angle. He cut to avoid hitting the car in front, cut out of the ruts and his left front hit the right rear of the Hirsch Plymouth. The front wheels had gotten out of the rut, but the rear wheels were still in them. I couldn't estimate his speed in the snow, but he was sliding. He had started turning right to try to avoid hitting the car," was sufficient to authorize the charge.
6. In ground 8 error is assigned upon eight separate excerpts from the charge, some of considerable length and none of which are contended to be erroneous except that cumulatively they "inferred that there was evidence in the case by which the jury could have found that the acts of the plaintiff's host driver were the sole proximate cause of plaintiff's injury" and that "this was not adjusted to the evidence." We do not find the several excerpts subject to the error assigned. Since it was shown that the host driver did stop his car in the street and in the ruts wherein all traffic traveling in that direction must move because, as plaintiff alleged in her petition, vehicles could not safely turn out of them, and since it is common knowledge that snow and ice on the street produce dangerous and slippery conditions for traffic, a jury question was raised as to whether the acts of the host driver, his manner of stopping at the time and place and under the existing conditions, may have been the sole proximate cause of plaintiff's injury. The charge was authorized.
Judgment reversed for the reasons stated in the second and third divisions. Felton, C. J., and Russell, J., concur. Eberhardt, J., concurs specially.
I concur in the judgment of reversal and in what is said in the opinion, except as to Division 3. Since my views on the matter there dealt with differ somewhat, I take the liberty of stating them here.
One may wonder why the plaintiff here, having the status of a guest against whom no negligence was shown and to whom none could be imputed from the host driver, since it did not appear that she controlled or had the right to control the host's conduct, should wish a charge on this doctrine. Its origin is the invention by the courts of an escape or relief from the harsh doctrine of contributory negligence that for so long had barred recovery by a plaintiff who was guilty of any negligence that may have been the cause of his injury — no matter how negligent the defendant had been. It reaches back to Davies v. Mann, (1842), 10 Mes. W. 546, 152 Eng. Reprint, 588, 19 Eng. Rul. Cas. 190, where it was held that a plaintiff who had left his ass fettered in the highway was not barred from a recovery against the defendant who drove into it since the defendant might, by the exercise of ordinary care, have avoided doing so. From the facts of this case the doctrine has on occasion been referred to as the "jackass doctrine," but more often and generally as the last-clear-chance doctrine, the avoidance, discovery of peril, or the humanitarian doctrine.
The authorities are in accord that since it is a rule designed as a defense against the contributory negligence doctrine, its application presupposes negligence on the part of the person injured or killed, or of the plaintiff. 38 Am. Jur. 903, Negligence, § 217; 65 CJS 762, Negligence, § 137; Anno. 92 ALR 47, 48; 119 ALR 1041; Prosser on Torts (Hornbook, 1941) 408, § 54; and see 2 Harper James, The Law of Torts, (1956) p. 1241, § 22.12, et seq.; MacIntyre, Rationale of Last Clear Chance, 53 Harvard L. Rev. 1225 (1940).
"The doctrine of the last clear chance presupposes a perilous situation, created or existing through the negligence of both plaintiff and defendant, but assumes that there was a time after such negligence has occurred when the defendant could, and the plaintiff could not, by use of the means available avert the accident." (Emphasis supplied). Shea v. Pilette, 108 Vt. 446 ( 189 A 154, 109 ALR 933). "The doctrine . . . simply means that, notwithstanding the previous negligence of the plaintiff, if at the time the injury was done it might have been avoided by the exercise of reasonable care on the part of the defendant, the defendant will be liable. . . To make the doctrine . . . apply, the situation must be such that the defendant might avoid the injuries after the plaintiff had by her own act placed herself in a position of peril that was or should have been apparent to the defendant." (Emphasis supplied). Kruger v. Omaha c. R. Co., 80 Neb. 490 ( 114 N.W. 571, 17 LRA (NS) 101, 127 ASR 786). "[T]he doctrine . . . [is] a two-edged sword cutting both ways, in other words, equally as applicable to the rights of a defendant as it is to those of a plaintiff," and if it should appear that plaintiff could have extricated himself from his peril and failed to do it, he may not recover. Cantu v. South Texas Transp. Co. (Tex.Civ.App.) 110 S.W.2d 995.
It has been referred to as a transitional doctrine from the harsh medieval principle of contributory negligence which enjoyed a rather early and widespread acceptance simply because it afforded a more equitable manner of adjusting the rights of parties both of whom were to some extent or in some manner at fault. However, a more recent development that evolved from the doctrine is the application of a proportional or comparative negligence test. Professor James, pointing to some of the deficiencies or inequities resulting from the "mechanical timing of a purely theoretical opportunity" which had ingrained itself into the application of the doctrine, asserted that "these difficulties would all be swept away by a statutory adoption of the principle of proportional fault." James, Last Clear Chance: A Transitional Doctrine (1938), 47 Y.L. J. 704. Of course Georgia had it already in Code §§ 66-402 and 105-603. It was thought by some that our adoption of the comparative negligence rule abolished the doctrine which places on the plaintiff the burden of showing that the negligence of the defendant came (a) after defendant had discovered or should have discovered his position of peril, and (b) when the plaintiff could not, by the exercise of ordinary care, extricate himself from it, and under which it becomes a matter of determining who the last wrongdoer was. Certainly the comparative negligence rule is a more liberal one, for it simply requires that there be a balancing of the negligence of the parties — no matter about the delicate timing — if it can be seen as the proximate or concurring proximate cause of plaintiff's injury. Cf. Southern R. Co. v. Daniell, 102 Ga. App. 414 (1) ( 116 S.E.2d 529), where a situation was handled under the comparative negligence rule rather than the last clear chance doctrine.
Mississippi adopted the comparative negligence rule in 1942 (Miss. Code Ann. § 1454), and it was thought by the bar of that state that this eliminated the last clear chance doctrine. But the Federal court apparently revived it as an available doctrine in Underwood v. Illinois Cent. R. Co., 205 F.2d 61 and 235 F.2d 868 (5th Cir.). In Price, Applicability of the Last Clear Chance Doctrine in Mississippi (1958), 29 Miss. L.J. 247, the author asserts that in view of these recognitions of the doctrine as being applicable under the Mississippi law "the . . . doctrine has ceased to be merely an interesting academic or theoretical exercise in mental gymnastics for the legal scholar, and has become an important practical consideration for the trial lawyer. . . [I]t will serve as a restriction or limitation upon our comparative negligence doctrine to an extent not heretofore recognized." (Emphasis supplied).
In Smith v. American Oil Co., 77 Ga. App. 463, 490 ( 49 S.E.2d 90), Judge Gardner asserted that "The doctrine of contributory negligence under the common law and that doctrine as modified by the rule of the last clear chance under the common law, have no place in our rule of comparative negligence and apportionment of damages under our Code sections as such. Such doctrine or rule of contributory negligence and the rule of last clear chance are involved in and vanish as such into our principle of comparative negligence and apportionment of damages. They are involved to some extent in our principles, but they vanish as they were known and operative under the common law." I find full agreement with Judge Gardner. There is no logical place under our comparative negligence principle for applying the doctrine of last clear chance. It is, and should be, simply a matter of balancing negligence under the facts, if the negligence is found to be a proximate cause. However, it must be observed that our courts have continued to apply the doctrine, and to give approval to its application. See Grayson v. Yarbrough, 103 Ga. App. 243, 246 ( 119 S.E.2d 41). In fairness it must be pointed out that the first sentence of Code § 105-603 may very well have the effect of freezing the doctrine into our law as it applies against the plaintiff.
Dean Hilkey asserted that this is a "well reasoned case" and that "it is not too much to hope that Judge Gardner's opinion as to the doctrine of last clear chance in Georgia will be adopted not only by the other division[s] of the Court of Appeals but by the Supreme Court when the question comes before that tribunal." (It would appear that the Court of Appeals did unanimously adopt the doctrine of Judge Gardner insofar as it may apply to a non-negligent plaintiff in Atlantic C. L. R. Co. v. Coxwell, 93 Ga. App. 159). See, Actions for Wrongful Death in Georgia, 22 GBJ 459, at p. 466, and case note on The Doctrine of Last Clear Chance in Georgia, 13 GBJ 104, 110.
This principle has its genesis in the declaration during the reign of Edward IV that if the act which caused the damage was the act of the plaintiff himself he could have no cause of action. III Holdsworth, History of English Law 378 (3rd Ed. 1923). See also Code § 105-1803.
A similar request for charge was denied by the trial court and the Supreme Court of Florida affirmed in Union Bus Co. v. Bowen, (Fla.) 184 S 17 because "there was no evidence of negligence of the plaintiff." It is true that the plaintiff in that case was not a guest, but the driver of his vehicle. Does the fact that the plaintiff here was a guest, and non-negligent, make a difference? Is the doctrine applicable in this situation because of that fact?
I think not. Since it originated purely as an escape from the harsh contributory negligence rule, a fortiori it finds no purpose to serve unless the plaintiff or the insured person has been negligent. This was made plain and clear in Atlantic C. L. R. Co. v. Coxwell, 93 Ga. App. 159, supra, a full bench decision in which all the judges concurred. The plaintiff, like the plaintiff here, was a guest in an automobile and non-negligent. She brought suit against her host driver and the railroad, charging each with certain acts of negligence. It was the contention of the railroad, on demurrer, that the allegations of the petition showed that the negligence of the host driver was the sole proximate cause of plaintiff's injury. This court disagreed with that contention and proceeded to give a careful and thorough consideration to the avoidance or last clear chance doctrine in situations of that kind. It was held: "This Code section [105-603] and these rules of law — the avoidance doctrine and the last-clear-chance doctrine — apply only where there is a negligent plaintiff. There is no issue in this case that the guest plaintiff here was not in the exercise of ordinary care for her own safety. . . As stated in 65 CJS 759, § 136: `It has been said that the doctrine [of last clear chance] is one involving nice distinctions, often of a technical nature, and the courts should be wary in extending its application. Accordingly, the doctrine cannot be extended into the field of joint tortfeasors, as a test of whether one of them only should be held liable to the injured person by reason of having discovered his peril.'. . . As to a negligent plaintiff, failure to avoid the peril caused by the negligence of another may be the sole proximate cause of the injury. As to a non-negligent third party plaintiff this negligence may be merely a concurrent or intervening cause, `in reality only a condition on or through which a negligent act . . . operates to produce an injurious result' which does not break the line of causation. 38 Am. Jur. 723, § 67." And finally the court concludes: "What is here held, among other things, is that the last-clear-chance doctrine cannot be applied in a case where the plaintiff is guilty of no negligence."
The wisdom of this conclusion is obvious when we, remembering the origin of the rule and its purpose, see that if it were applied in a situation involving a non-negligent third party plaintiff it would, as Judge Townsend warned in Coxwell, be no more than a test of whether one only of the joint tortfeasors should be held responsible. The fact that plaintiff here did not proceed against her host driver can make no difference. If the matter be left to an application of our comparative negligence rules plaintiff is not saddled with a burden of showing a timing of this defendant's negligence in failing to take advantage of a last opportunity to extricate her from her peril. Rather, she has the advantage of proving the facts, whatever they may be, and leaving it to the jury to balance the defendant's negligence with that of her host driver solely to determine, as to her, whether the negligence of the host driver may have been the sole proximate cause of her injury. Absent that finding, if the negligence of the defendant be found a proximate, though concurring, cause with the negligence of the host driver, she is not to be precluded from recovery or to have her damages diminished. It is reduced to the more simple matter of proximate cause. That is more liberal and more humanitarian than the last clear chance doctrine could ever be. It is so in all negligence actions, and as Judge Gardner indicated, was thought to be and should be the rule for them all since the adoption of the comparative negligence statutes.
"The application of the `last clear chance' doctrine to Georgia cases would seem to be error. The comparative negligence doctrine and the equal or greater negligence doctrine seem to take care of any situation that may arise where defendant's negligence follows that of plaintiff and contributes to plaintiff's injury. The section [105-603] of the Code seems to be quite clear on this question for it is provided that `In other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained.' `Other cases' certainly would include situations in which defendant negligently injured plaintiff after plaintiff's negligence was in existence. Furthermore, there is no statutory avoidance limitation applicable to defendant which would relieve him if he used ordinary care to avoid injuring the plaintiff. The defendant consequently should be chargeable with diligence to keep his force under control so that he may not cause injury to the plaintiff who has gotten himself into a dangerous situation. Even as to plaintiff, it seems to be a bit of judicial legislation to have fixed a point at which plaintiff's duty to avoid defendant's negligence should begin, rather than to charge plaintiff with the duty to control the force he has created during the entire period prior to the point of injury. The English cases from which the Georgia avoidance doctrine was derived did not so limit plaintiff's duty." Hilkey, Comparative Negligence In Georgia, 8 GBJ 51, 59.
Simply because negligence on the part of the plaintiff is an essential element in the last clear chance doctrine it has been held that one who invokes the doctrine confesses his own negligence. Mooney v. Terminal R. Assn. of St. Louis, 352 Mo. 245 ( 176 S.W.2d 605). It was invoked by pleading the doctrine in that case. But if a plaintiff requests a charge of the court upon the doctrine it would seem that the same result might come from it. No such contention is raised here because of the refused request, nor do we make any ruling on it.
Certainly there is no contention made in this record that the plaintiff was lacking in ordinary care for her own safety, nor is there any evidence of negligence on her part. The request had no application to the situation presented and the learned trial judge committed no error in refusing to give it.
I am not unaware of Georgia Automatic Gas Co. v. Fowler, 77 Ga. App. 675, supra, in which the court approved an instruction that if the driver of the car in which the plaintiff was riding was negligent and by his negligence placed the plaintiff in peril, and such position of peril were known to defendant's driver, and defendant's driver then and there was negligent in any one or more of the particulars alleged in plaintiff's petition, then plaintiff would be entitled to recover, observing that "the charge on which error is assigned is an application of the last clear chance doctrine to the evidence in the case." It is to be noted that Fowler was decided by a division of three judges or half of the court as it then existed in 1948, while Coxwell was decided by the full court of six judges, all concurring, in 1955. Insofar as it may be contended that Fowler has any application in a suit brought by a non-negligent plaintiff I take it that when the court asserted that certain named cases and "any others of like purport" were overruled it included Fowler, though it was not among those listed.