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Holcomb v. Kirby

Court of Appeals of Georgia
Jan 11, 1968
160 S.E.2d 250 (Ga. Ct. App. 1968)


43112, 43113.



Action for damages. Fulton Superior Court. Before Judge Whitman.

Woodruff, Savell, Lane Williams, Edward L. Savell, Burton Brown, for appellant.

Powell, Goldstein, Frazer Murphy, C. B. Rogers, David R. Aufdenspring, for appellee.

1. No exception having been made before verdict, to portions of the charge, and no error appearing which we find to be harmful as a matter of law, no reversible error appears.

2. While emergency ordinarily involves the matter of whether one has opportunity to make a choice of two courses of action, it can arise with such suddenness that one does not have the time for making judgment as to whether his course of action should be different.

3. The charge relative to the duty owed by a host driver to his guest, together with a charge that the negligence, if any, of the host was not imputable to the guest, though the guest could not recover against the driver of another vehicle colliding with that in which she was riding if her host's negligence was the sole proximate cause of her injuries, was not confusing or misleading to the jury.

4. An exception that the court refused to charge "in the language of" certain written requests presents nothing for consideration on appeal.


James T. Holcomb brought an action against Stanley R. Kirby for damages for the wrongful death of his wife while she was allegedly riding as a guest passenger in an automobile which was struck by the defendant's automobile. The petition as amended alleged substantially as follows: At approximately 10:40 p. m., February 4, 1964, Mrs. Holcomb and the driver of the Volkswagen in which she was a guest passenger had become lost and they were trying to find the residence of a friend. They drove in a northeasterly direction on Mount Vernon Road and entered its intersection with Chamblee-Dunwoody Road at approximately 25 miles per hour. At approximately the same time, the defendant was driving a Ford automobile in a northwesterly direction on Chamblee-Dunwoody Road toward the aforesaid intersection at a speed of 60 to 65 m.p.h. in a posted 45 m.p.h. speed zone. As the two vehicles approached the intersection, the defendant continued to drive at said speed and, although he knew that the other automobile was also entering the intersection, he failed to have his vehicle under control and neglected to apply his brakes until he was 32 feet from the point of impact, resulting in a collision with the side of the VW, which knocked it approximately 90 feet down Chamblee-Dunwoody Road, causing the death of Mrs. Holcomb. The action is brought to recover for the full value of the wife's life and her funeral expenses, all of which damages were proximately caused by the following alleged acts of the defendant's negligence: (a) In driving at a speed greater than reasonable under existing conditions, in violation of Code Ann. § 68-1626 (a); (b) In driving at a speed in excess of 50 m.p.h. at nighttime, in violation of Code Ann. § 68-1626 (b, 2); (c) In failing to reduce his speed before entering the intersection, in violation of Code Ann. § 68-1626 (c); (d) In failing to apply his brakes in time to avoid a collision; (e) In failing to yield the right of way to the VW, which had entered the intersection first, in violation of Code Ann. § 68-1650 (a); (f) In driving at a speed in excess of the 45 m.p.h. posted speed limit, in violation of Code Ann. §§ 68-1626, 68-1627, being negligence per se.

The defendant filed an answer to the petition, and on the trial of the case before a jury the following evidence was adduced: Mrs. Holcomb had left her home in Rossville, Georgia, as a guest passenger in the VW, driven by Mrs. Cornelia Payne. They were going to Atlanta to visit a friend of Mrs. Holcomb. According to Mrs. Payne, shortly before the collision she became lost and stopped at a service station to ask directions. The last thing she remembered before regaining consciousness four days after the collision was having stopped at a traffic light. She was confused about whether or not the light was at the intersection where the collision occurred.

Police officer Honea testified that, in his opinion, the defendant's speed at the time he applied his brakes was about 40 m.p.h. He further expressed his opinion, based upon the positions of the two occupants of the VW when he arrived on the scene Mrs. Payne was pinned in the right, or passenger, side and Mrs. Holcomb's body was outside the automobile), that Mrs. Holcomb had been driving at the time of the collision.

According to the investigating police officers, the defendant's vehicle had left 32 feet of skid marks up to the point of impact, at which point it spun around 13 feet and slid backwards 17 feet up against the northeast curb. The VW was found at a point approximately 90 feet north of the intersection alongside Chamblee-Dunwoody Road, having left no skid marks and no marks indicating that its brakes had been applied.

The defendant, the sole eyewitness to the collision, testified that his speed had been 50-55 m.p.h., that he had reduced it to 35-40 m.p.h. at a school zone a considerable distance from the intersection and that it was 35-40 m.p.h. at the time he applied his brakes in attempting to stop; that he had slowed down because he knew of the existence of the intersection; that he first saw the VW as it cleared a building on the southwest corner of the intersection, at which time he estimated its speed to have been at least 50 m.p.h.; that the VW neither decreased in speed nor swerved in either direction prior to the collision; that he was unable to determine whether or not the VW's headlights were on; that he applied his brakes immediately upon seeing the VW and skidded into it; that the traffic light at the intersection was not operating at the time involved.

Mr. Dale Metzger, an accident reconstruction expert, testified that, in his opinion, based upon police measurements and photographs and his own calculations and viewing of the scene, that the defendant's automobile was 40 to 45 feet from the closest crosswalk line at the time the VW was entering the intersection and he was traveling between 40 and 45 m.p.h. when he applied his brakes; that a vehicle travels 66 feet per second at 45 m.p.h and 60 feet per second at 40 m.p.h.; that the VW traveled in a straight line, probably without applying brakes or reducing speed, at a speed of 20 to 25 m.p.h. at the time of impact; that approximately 2.53 seconds elapsed between the time when the defendant could have seen the VW and the time of impact, one second of which was his reaction time; that it would be a mathematical impossibility for the defendant's vehicle to have been going 35 to 40 m.p.h. and the VW to have been going 50 to 60 m.p.h. and the two vehicles to have ended up in the positions in which they were found.

The trial resulted in a verdict and judgment in favor of the defendant. The plaintiff appeals from the judgment of the court overruling his motion for a new trial. The defendant filed a cross appeal, enumerating as error certain rulings on the pleadings.

1. Appellant enumerates as error the charging of both Subsections (a) and (b) of Code § 68-1650 (which he now contends are conflicting) "without giving an explanation as to how they should be resolved." No exception was made to this part of the charge, or as to any failure of the court to charge an "explanation" thereof at any time before verdict, as is required by Code Ann. § 70-207 (a). Consequently, unless error appears that is "harmful as a matter of law" we are not authorized to consider this enumeration. For statements of when an error (if there was one) meets the test for consideration under Code Ann. § 70-207 (c), see Nathan v. Duncan, 113 Ga. App. 630 (6), 636 ( 149 S.E.2d 383); Ga. Power Co. v. Maddox. 113 Ga. App. 642 (1) ( 149 S.E.2d 393); Hollywood Baptist Church of Rome v. State Hwy. Dept., 114 Ga. App. 98, 99 (3) ( 150 S.E.2d 271); Southwire Co. v. Franklin Aluminum Co., 114 Ga. App. 337 (2) ( 151 S.E.2d 493); Metropolitan Transit System, Inc. v. Barnette, 115 Ga. App. 17 (1) ( 153 S.E.2d 656); Windsor Forest, Inc. v. Rocker, 115 Ga. App. 317, 324 (4) ( 154 S.E.2d 627); Moon v. Kimberly, 116 Ga. App. 74 (2) ( 156 S.E.2d 414); City of Douglas v. Rigdon, 116 Ga. App. 306 (2) ( 157 S.E.2d 66), and Hawkins v. State, 116 Ga. App. 448 ( 157 S.E.2d 800). The situation presented here does not meet these tests. Cf. Williams v. State, 223 Ga. 773 (4) ( 158 S.E.2d 373).

It does not appear, and it is not contended that any request was made upon the court for any other or further charge than that which was given relative to these statutory provisions. For this reason no error appears. Barnes v. Barnes, 224 Ga. 92 (3); Foskey v. State, 116 Ga. App. 334 (2) ( 157 S.E.2d 314); Carroll v. Morrison, 116 Ga. App. 575 (4) ( 158 S.E.2d 480); Gilmore v. State, 117 Ga. App. 67 (1).

As we understand the dissent, it is not found, as contended, that the two subsections of this statute are conflicting. Rather, the view is that each is appropriate to a different state of facts, and that the evidence, being conflicting, presents each state of facts. With that we agree. Consequently, the charging of each subsection was appropriate. A contrary holding is not to be found in Ivey v. Hall, 77 Ga. App. 350 ( 48 S.E.2d 788), where the charge was not in the language of the statute, and the court, though finding some "inaptness" in the charge, found no reversible error.

2. Under the definition of emergency in Seaboard A.-L. R. v. McMichael, 143 Ga. 689, 695 ( 85 S.E. 891), we think the facts as developed by the evidence in this case authorized a charge on the matter. And see Bryant v. Ga. R. c. Co., 162 Ga. 511, 517 ( 134 S.E. 319) where it was asserted that "The rule judicially stated is that one who in a sudden emergency acts according to his best judgment, or who, because of want of time in which to form a judgment, omits to act in the most judicious manner, is not chargeable with negligence." And see Ware v. Alston, 112 Ga. App. 627, 629 ( 145 S.E.2d 721).

3. Enumerated error 3 complains of the court's having injected into the case an issue of whether or not the plaintiff could recover from Mrs. Payne, the host driver, by charging the degree of care Mrs. Payne owed to Mrs. Holcomb and charging that there could be a recovery against either or both of the responsible parties. The court also charged that the negligence, if any, of Mrs. Payne would not be imputable to Mrs. Holcomb if Mrs. Holcomb was a guest passenger; that if Mrs. Holcomb was a guest passenger and that the negligence of both Mrs. Payne and the defendant, if any, combined to cause Mrs. Holcomb's death, the plaintiff would be entitled to recover even though Mrs. Payne is not a party and even though there was a difference in the degree of negligence, if any, by the defendant on the one hand and Mrs. Payne on the other; that if the sole proximate cause of Mrs. Holcomb's death was the negligence of the defendant alone, then the plaintiff was entitled to recover; that if the sole proximate cause of Mrs. Holcomb's death was the negligence of Mrs. Payne alone, then there could be no recovery by the plaintiff. Considering the charge as a whole, this part was not misleading to the jury. See Scholle Atlanta Corp. v. Nealy, 110 Ga. App. 775, 776 (2) ( 140 S.E.2d 88), and citations.

4. Enumerated errors 4 and 5 complain of the court's refusal to charge the jury in the language of the plaintiff's written requests numbers 5 and 6. While prior to the adoption of the Appellate Practice Act a court was required to charge an appropriate written request, timely made, in its exact language, the requirement is no longer viable. It was grounded upon Code § 70-207, which was specifically repealed by the Act. Carnes v. State, 115 Ga. App. 387, 393 (6) ( 154 S.E.2d 781). The subject matter of the requests was sufficiently covered in the charge.

Moreover, the record does not indicate that exception to the refusal of the requests was properly made. U.S. Security Warehouse v. Tasty Sandwich Co., 115 Ga. App. 764 (1) ( 156 S.E.2d 392), and citations. Judgment affirmed on the main appeal; cross appeal dismissed. Bell, P. J., Jordan, P. J., Hall, Pannell, Deen and Quillian, JJ., concur. Felton, C. J., dissents in part. Whitman, J., disqualified.

I dissent from the judgment and Division 1 of the majority opinion. In my opinion we are squarely faced with the question whether Subsection (c) of the Act of 1965 and 1966 as codified in Code Ann. § 70-207 has any meaning. In my opinion the failure of the court to explain to the jury the meaning of Code § 68-1650 (a) and (b) was error as a matter of law. Without an explanation the jury could not possibly have decided the case on any sound or reasonable basis. The question as to when two vehicles approach an intersection at approximately the same time is a vital one and one that will be the determining factor in the many intersection cases which are bound to arise in the future. It is of vital importance that this question be decided now for the protection of the parties to this as well as future cases involving the question which has not been decided in this state.

Enumerated error 1 is as follows:

"1. The court erred in charging the jury on two conflicting propositions of law, without explanation as to how they should be resolved, as follows:

"(a) The court charged the language of Georgia Code § 68-1650 (a) which provides that the driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection from a different highway.

"(b) The court also instructed the jury that under Georgia Code § 68-1650 (b), when two vehicles enter an intersection at approximately the same time, the vehicle on the right shall have the right of way.

"(c) However, the court gave the jury no rules for resolving the conflicting statutes."

The enumeration of errors need not conform to the overly stringent technicalities of the assignments of errors abolished by the rules of the Appellate Practice Act of 1965. Code Ann. § 6-810 (Ga. L. 1965, pp. 18, 29, 1965, pp. 240, 243). It can be expounded and elaborated upon by the briefs and by oral argument as long as it meets the minimum requirement of putting the opposite party on notice of the errors complained of.

The basis of the contended conflict is the view that the pleadings and evidence show that the VW necessarily "entered" the intersection first, yet, because of their relative speeds, both vehicles entered the intersection "at approximately the same time." Under this view, the effect of charging both subsections without explanation in the present case was to charge that both vehicles had the right of way at the intersection, the plaintiff's under Subsection (a) and defendant's under (b).

"Apart from, or without reference to, such statutes, or at least in the absence of regulations establishing a different rule, it has been held that the vehicle first reaching and entering an intersection has the right of way over a vehicle subsequently reaching it; and the driver of the latter vehicle should delay his progress so as to allow the first arrival to pass in safety." 60 CJS 871, Motor Vehicles, § 362 (b 3). Teague v. Keith, 214 Ga. 853 ( 108 S.E.2d 489); Phillips v. Reece, 106 Ga. App. 779 ( 128 S.E.2d 370); Meeks v. Johnson, 112 Ga. App. 760 ( 146 S.E.2d 121). Irrespective of the matter of right of way, both of the drivers had a duty under Code Ann. § 68-1626 (a), (c) (Ga. L. 1953, Nov. Sess., pp. 556, 577, as amended) to drive at an appropriate reduced speed in approaching the intersection, and failure to perform this duty could have been found to be such additional negligence as would have made it impossible to comply with the right of way statute. Since there was evidence authorizing a finding that the VW entered the intersection first, the charge on Subsection (a) was appropriate.

The provision of Subsection (b) is not intended to be in conflict with that of Subsection (a) (60 CJS 871, Motor Vehicles, § 362 (b 3)), but applies to a different factual situation, i.e., where the vehicles enter the intersection at "approximately the same time." This phrase has been variously defined by the courts so as to apply, generally, when, at a given point in time, there is an imminent hazard of a collision if both continue the same course at the same speed; "and the right of way must be yielded to a vehicle approaching from the left and first entering the intersection only if the vehicle on the left has reached the intersection an appreciable length of time ahead of the automobile approaching from the right and is in actual possession of the intersection." 60 CJS 871, Motor Vehicles, § 362 (b 3), nn. 92, 93, and cit. The cases therein cited agree on the propositions that the mathematical determination of who reaches an intersection first by a few feet should not be controlling, and that the driver on the left cannot pre-empt the intersection by a mere split-second prior entry, as by racing into it with undiminished speed. "Approximately the same time," then, means, generally, within a split second of each other. Under this construction, even if the jury found, for example, that the defendant's vehicle was only 40 feet away from the intersection as the VW was entering it, and the defendant's speed was twice that of the VW, nevertheless, if the defendant entered the intersection one second or longer after the VW, then the defendant could be found to have violated the VW's right of way.

The evidence as to the speeds, distances and times involved is necessarily based on opinion and circumstances, which cannot be so absolutely and mathematically weighed as to decide the issues as a matter of law. In view of the close situation presented by the evidence as to whether or not the vehicles entered the intersection at "approximately the same time," the jury was properly charged the provisions of Subsection (b). Although the provisions of the two subsections are not in conflict, nevertheless the proven facts in a given case can come within the purview of but one of them and the jury should have been given sufficient interpretation of the two provisions and instructions as to how to determine which was applicable under the particular facts they might find. "[I]f there is or may be a difference of opinion regarding the interpretation of the statutory language, it has been said to be the better practice for the trial court, in giving instructions in such language, to interpret the statute." 10B Blashfield, Cyclopedia of Automobile Law and Practice, p. 482, § 6666. See also Ivey v. Hall, 77 Ga. App. 350 ( 48 S.E.2d 788), in which a similar charge was held error for lack of an explanation of how to determine the question of right of way. "A charge containing two distinct propositions directly conflicting the one with the other is calculated to leave the jury in such a confused condition of mind that they cannot render an intelligent verdict." Strong v. Palmour, 113 Ga. App. 750, 754 ( 149 S.E.2d 745), and cit.

Although no exception to the above charge was made during the trial, because the charge of the two subsections, without any interpretive instructions, left the jury in this case confused as to how to determine the right of way under such statute, and may well have the same result in future similar cases, it was "a substantial error in the charge which was harmful as a matter of law," such as can be considered without an objection. Code Ann. § 70-207 (c) (Ga. L. 1965, pp. 18, 31; 1966, pp. 493, 498); McCurry v. McCurry, 223 Ga. 334 (1) ( 155 S.E.2d 378); Carnes v. State, 115 Ga. App. 387, 392 (5) ( 154 S.E.2d 781); State Hwy. Dept. v. Calhoun, 114 Ga. App. 501 (5c) ( 151 S.E.2d 806).

Summaries of

Holcomb v. Kirby

Court of Appeals of Georgia
Jan 11, 1968
160 S.E.2d 250 (Ga. Ct. App. 1968)
Case details for

Holcomb v. Kirby

Case Details

Full title:HOLCOMB v. KIRBY; and vice versa

Court:Court of Appeals of Georgia

Date published: Jan 11, 1968


160 S.E.2d 250 (Ga. Ct. App. 1968)
160 S.E.2d 250

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