Colbert v. Wingo

233 S.E.2d 873, 141 Ga. App. 517, 1977 Ga. App. LEXIS 1971

• Court: Court of Appeals of Georgia
• Decided: March 8, 1977
• Docket: 53135
• Status: Published

Opinion

Smith, Judge.

This was a negligence case in which Otis Colbert sued Don Wingo seeking compensation for injuries sustained when Wingo’s automobile hit eleven-year-old Colbert as he and two companions rode their bicycles on a public highway. The jury returned a verdict for the defendant, Wingo. Colbert’s appeal argues the trial court erred by charging on the emergency doctrine and contributory and comparative negligence. We affirm.

1. This is not a case such as Davis v. Calhoun, 128 Ga. App. 104 (195 SE2d 759), where the emergency doctrine was inapplicable as a matter of law. Evidence that Colbert bumped a companion’s bicycle and suddenly veered into the path of Wingo’s oncoming automobile was sufficient to justify a charge on emergency. There was evidence that Wingo may have contributed to the emergency by too swiftly approaching the three cyclists. The trial court properly charged that if he so contributed the doctrine would not apply. The charge clearly set forth the applicability and operation of the doctrine (Ware v. Alston, 112 Ga. App. 627 (145 SE2d 721)) and left the factual determinations for the jury.

Argued January 17, 1977 Decided March 8, 1977. W. B. Mitchell, for appellant. Martin, Snow, Grant & Napier, Wendell L. Bowden, John C. Scarborough, Jr., for appellee.

2. The charge on contributory and comparative negligence was authorized by the evidence, correctly stated the law, and properly included consideration of the degree of care imposed on a child of tender years.

Judgment affirmed.

Bell, C. J., and McMurray, J., concur.