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Ware v. Alston

Court of Appeals of Georgia
Nov 10, 1965
145 S.E.2d 721 (Ga. Ct. App. 1965)


In Ware v. Alston, 112 Ga. App. 627 (1) (145 S.E.2d 721) and cits. is to be found an excellent summary of factors which must appear to make the rule applicable: It refers only to those acts which occur immediately following the realization of the peril and before there is opportunity for mature reflection. It results from a combination of circumstances calling for immediate action, without time for consideration; it operates to deprive one of the exercise of his logical powers of choice.

Summary of this case from Davis v. Calhoun





Action for damages. Chatham Superior Court. Before Judge Harrison.

J. Walter Cowart, for plaintiff in error.

Bouhan, Lawrence, Williams Levy, Frank W. Seiler, contra.

1. (a) In an action for negligence, it is necessary, in order to render the emergency doctrine applicable, that the one confronted with a sudden emergency have available to him a choice of alternative courses of action by which to meet the emergency plus sufficient time and opportunity to take some action to avoid the injury.

(b) The evidence authorized a charge on the issue of sudden emergency.

2. The evidence authorized a charge on unavoidable accident.

3. There was no error in the charge considered in this division of the opinion.


Elmer Ware brought this action against Ephraim L. Alston to recover damages for injuries sustained by plaintiff in a collision of two automobiles, one of which was driven by plaintiff and the other by defendant.

Evidence adduced upon trial of the case showed that plaintiff was driving his automobile south on State Highway No. 67 approaching its intersection with State Highway No. 119 (now No. 46). Defendant was driving his automobile west on State Highway No. 119 at a speed between 40 and 45 miles per hour. A traffic control sign at the intersection directed vehicles traveling west on No. 119 to "stop" before entering the intersection. Approximately 200 yards east of the intersection was a "stop ahead" warning sign.

After defendant had passed the warning sign by about 75 feet, he applied his brakes in order to stop, but the brakes would not hold. Suddenly aware of the brake failure, he began pumping the brake pedal, and by this means acquired enough pressure to slow the car a little. Defendant testified, "I was so sure that the car was going to stop because I got a little traction and it slowed the car down; and when I went out in the intersection I was doing no more than about eight miles an hour, and — I saw this other car, and I blew my horn and pulled up my emergency brakes. . . At that last split second I made a hand swing to my left, and that's when the two cars collided."

Other evidence showed that defendant had made numerous stops during the morning of the collision and that his brakes had not previously failed to function properly. A mechanic testified that the defective condition of the brakes was not one that would be discovered during normal and routine maintenance of the automobile.

The jury returned a verdict for defendant and judgment was entered accordingly.

Plaintiff excepts to the judgment of the trial court denying his amended motion for new trial.

1. Special grounds 1 and 2 of the motion for new trial assign error upon charges of the court on the theories of sudden emergency and unavoidable accident.

It appears from the evidence that defendant was approximately 525 feet from the intersection when he first became aware of his brake failure and that at that time he was traveling 45 miles an hour or less. Mathematically he therefore had a minimum of almost eight seconds, and perhaps several seconds longer, in which to respond to the situation before reaching the intersection.

Plaintiff contends that the theories of sudden emergency and unavoidable accident were inapplicable in the case because of the length of time and distance from the point where the brake failure occurred to the point of collision, that there was no "sudden emergency" or "unavoidable accident" because defendant had ample time and available courses of conduct to avert the collision.

"The word `emergency' signifies some sudden or unexpected necessity, requiring immediate or at least quick action. . . An `emergency' is a condition of things appearing suddenly or unexpectedly; that is, it is an unforeseen occurrence. As related to the law of negligence, it may properly be defined as any event or combination of circumstances which call for immediate action without giving time for the deliberate exercise of judgment or discretion, in short, an exigency." Seaboard Air-Line R. v. McMichael, 143 Ga. 689, 695 ( 85 S.E. 891).

"Anything which operates to deprive a person of ability to exercise his intellectual powers and guide his acts thereby will relieve him of an imputation of negligence that otherwise might arise from his conduct. Emergencies or sudden perils illustrate this proposition. 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." Bryant v. Georgia R. c. Co., 162 Ga. 511, 517 ( 134 S.E. 319); Pollard v. Weeks, 60 Ga. App. 664, 672 ( 4 S.E.2d 722). "A person threatened with an imminent danger is not held to the same circumspection of conduct that he would be held to if he were acting without the compulsion of the emergency. A person has a right to choose even a dangerous course, if that course seems the safest one under the circumstances." Pacetti v. Central of Ga. R. Co., 6 Ga. App. 97, 102 ( 64 S.E. 302); Horton v. Sanchez, 57 Ga. App. 612, 620 ( 195 S.E. 873); Pollard v. Weeks, supra; Morrow v. Southeastern Stages, Inc., 68 Ga. App. 142, 148 ( 22 S.E.2d 336); Doyle v. Dyer, 77 Ga. App. 266, 269 ( 48 S.E.2d 488); Baggett v. Jackson, 79 Ga. App. 460, 465 ( 54 S.E.2d 146). See also, Cone v. Davis, 66 Ga. App. 229, 232 ( 17 S.E.2d 849).

The doctrine of emergency "refers only to those acts, either of the plaintiff or the defendant, which occur immediately following the realization of the peril or crisis and before there is time for mature reflection." Stripling v. Calhoun, 98 Ga. App. 354, 357 ( 105 S.E.2d 923). And it cannot be invoked by one whose negligent conduct created the emergency. See Briscoe v. Southern R. Co., 103 Ga. 224, 226 ( 28 S.E. 638); United Motor Freight Terminal Co. v. Hixon, 77 Ga. App. 506, 510 (6) ( 48 S.E.2d 769); State Constr. Co. v. Johnson, 88 Ga. App. 651, 653 ( 77 S.E.2d 240).

The effect of the emergency doctrine is simply this: The fact that a person is confronted with an emergency does not relieve him from the duty to exercise ordinary care; however, an emergency situation likely to impair the person's judgment is a factor to be considered by the jury in determining what is ordinary care under the circumstances. Napier v. DuBose, 45 Ga. App. 661 (4b) ( 165 S.E. 773); Chitwood v. Stoner, 60 Ga. App. 599, 603 ( 4 S.E.2d 605); Cartey v. Smith, 105 Ga. App. 809, 812 ( 125 S.E.2d 723).

Plaintiff contends that there was no emergency. However, whether an emergency existed or not, that issue, like all questions of diligence, negligence, contributory negligence and proximate cause except in plain and indisputable cases, was a question for determination by the jury. Dabbs v. Rome R. c. Co., 8 Ga. App. 350, 359 ( 69 S.E. 38); Olliff v. Howard, 33 Ga. App. 778, 781 ( 127 S.E. 821); Brown v. Savannah Electric c. Co., 46 Ga. App. 393, 399 ( 167 S.E. 773); Gatewood v. Vaughn, 86 Ga. App. 823, 827 ( 72 S.E.2d 728).

Assuming arguendo, as plaintiff contends, that the evidence shows that defendant had ample time and distance and available courses of conduct by which he might have averted the collision, that alone does not mean that there was no emergency. Indeed, the emergency doctrine, by its very nature, presupposes the existence of factors like these, which would afford the person confronted by the emergency the opportunity to choose between alternative courses of conduct so as to adopt the safer course or one which might avoid the injury altogether. In the absence of such factors allowing quick judgment and consequent action by the one so confronted, there can be no conduct to which to apply the qualified standard, and the doctrine is thus inapplicable. In this connection see: Perry v. Piombo, 73 Cal.App.2d 569 ( 166 P.2d 888); Nahhas v. Pacific Greyhound Lines, 153 Cal.App.2d 91 ( 313 P.2d 886); Corridan v. Agranoff, 210 Minn. 237 ( 297 N.W. 759); Frost v. Steens, 88 N.H. 164 ( 184 A 869); Healy v. Moore, 108 Vt. 324 ( 187 A 679); Hanson v. Matas, 212 Wis. 275 ( 249 N.W. 505); Klas v. Fenske, 248 Wis. 534 ( 22 N.W.2d 596).

Defendant contends that those factors which actually render the doctrine applicable to the instant case render it inapplicable. This argument is fallacious.

The fact that defendant was unable to stop the car in the allotted time and distance in his traffic lane according to the normal course in which he was proceeding, so that it was necessary that he take into account theretofore unconsidered factors, make a quick decision on the basis of them and act accordingly if he was to avoid an imminent collision, was clearly indicative of an emergency situation.

See on this subject generally the extensive treatment in 80 ALR2d 5-165.

2. In legal contemplation the term "unavoidable accident" does not mean "unavoidable" in the absolute sense of that word.

"There is generally no liability for an unavoidable accident, which is defined as one which under all the circumstances could not have been prevented by the exercise of reasonable care." Brewer v. Gittings, 102 Ga. App. 367, 376 ( 116 S.E.2d 500). "In its proper use the term `accident' excludes negligence; that is, an accident is an event which occurs without the fault, carelessness, or want of proper circumspection of the person affected, or which could not have been avoided by the use of that kind and degree of care necessary to the exigency and in the circumstances in which he was placed." Richter v. Atlantic Co., 65 Ga. App. 605, 608 ( 16 S.E.2d 259); Morrow v. Southeastern Stages, Inc., 68 Ga. App. 142, 146, supra. See also: Code § 102-103; Stansfield v. Gardner, 56 Ga. App. 634, 635 ( 193 S.E. 375); Cobb v. Big Apple Supermarket, 106 Ga. App. 790, 792 ( 128 S.E.2d 536).

However, as observed in Division 1, while the evidence may have shown that defendant might have avoided the collision with plaintiff's car, nevertheless, if after defendant's brakes failed he was in the exercise of ordinary care as qualified by the emergency doctrine, he would not have been negligent in failing to avert the collision even though he could have done so. If neither party was negligent, the collision would thus have been an "unavoidable accident" according to the legal definition of that term. We cannot say as a matter of law that under the circumstances neither party's conduct measured up to the standard of care applicable to him. The charge on the issue of accident, which the trial court delivered in the language of the charge approved in Brewer v. Gittings, 102 Ga. App. 367, supra, and Cartey v. Smith, 105 Ga. App. 809, 812, supra, was therefore authorized by the evidence.

3. Special ground 3 assigns error upon a portion of the court's charge respecting the issue of plaintiff's contributory negligence. Excerpts from the charge material to consideration of this ground are as follows: "I charge you that the defendant in this case has raised the issue of contributory negligence if he, himself, is negligent and his negligence, concurring in any degree with the negligence of another or of others, aids in proximately causing injury to himself. . . If you find that the plaintiff failed to exercise ordinary care at the time and place and under the circumstances then existing, he would have been guilty of contributory negligence. If you further find that this contributory negligence was the proximate cause of his injuries, then the plaintiff would not be entitled to recover."

Plaintiff contends that the charge given was incorrect as an abstract proposition of law because it indicated that plaintiff's negligence contributing in any amount to his injuries would bar his recovery against defendant and that it was incomplete because it failed to instruct the jury as to apportionment of damages between the parties.

The doctrine of contributory negligence as that term is used in the common law is not the law of this State; the doctrine which does obtain is that of comparative negligence. Code § 105-603; Central of Ga. R. Co. v. Larsen, 19 Ga. App. 413, 417 ( 91 S.E. 517). Mere contributory negligence does not bar recovery by plaintiff and it is harmful error to charge that a plaintiff's negligence will bar his recovery. See Thomas v. Gainesville c. R. Co., 124 Ga. 748, 749 ( 52 S.E. 801); Louisville c. R. Co. v. Stafford, 146 Ga. 206, 209 ( 91 S.E. 29); LimeCola Bottling Co. v. Atlanta W. P. R. Co., 34 Ga. App. 103, 104 ( 128 S.E. 226).

With respect to use of the phrase "the proximate cause," the charge complained of in this ground is substantially the same as that approved in Elberton Eastern R. Co. v. Thornton, 32 Ga. App. 259 (4) ( 122 S.E. 795). By its approval of the requested charge in that case, the court there approximated the phrase "the proximate cause" to "the sole proximate cause." "The" is "A demonstrative adjective used chiefly before a noun to individualize, specialize, or generalize its meaning, having a force thus distinguished from the indefinite distributive force of a, an, and from the abstract force of the unqualified noun." Webster's New International Dictionary (2d Ed. 1954), p. 2617. Thus the charge given was not equivalent to charging that plaintiff's contributory negligence, if any, would bar his recovery against defendant.

However, while "the proximate cause" as used in the charge given imports "the sole proximate cause," yet, the use of the former phrase in lieu of the latter is not good practice, where the precise meaning of the trial court can be so easily detailed for greater clarity to the jury.

Even if the excerpt from the charge attacked in this ground left the jury with some uncertainty as to its meaning, that uncertainty was resolved by another part of the charge as follows: "If the jury should find that the degree of negligence attributable to the plaintiff was less than that attributable to the defendant, the plaintiff would be entitled to recover, but not the full amount of his damages. Those damages, when ascertained, should be reduced by the jury in proportion to the degree of negligence attributable to plaintiff."

This ground of the motion for new trial shows no reversible error.

4. Special ground 4 states simply, "Because the charge as a whole was unfair and prejudicial to plaintiff's cause and was not responsive to the pleadings and evidence." This ground is too vague and incomplete to present anything for decision by this court.

5. The general grounds of the motion for new trial were abandoned.

Judgment affirmed. Frankum and Hall, JJ., concur.

Summaries of

Ware v. Alston

Court of Appeals of Georgia
Nov 10, 1965
145 S.E.2d 721 (Ga. Ct. App. 1965)

In Ware v. Alston, 112 Ga. App. 627 (1) (145 S.E.2d 721) and cits. is to be found an excellent summary of factors which must appear to make the rule applicable: It refers only to those acts which occur immediately following the realization of the peril and before there is opportunity for mature reflection. It results from a combination of circumstances calling for immediate action, without time for consideration; it operates to deprive one of the exercise of his logical powers of choice.

Summary of this case from Davis v. Calhoun
Case details for

Ware v. Alston

Case Details

Full title:WARE v. ALSTON

Court:Court of Appeals of Georgia

Date published: Nov 10, 1965


145 S.E.2d 721 (Ga. Ct. App. 1965)
145 S.E.2d 721

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