Durden v. Collins

312 S.E.2d 842, 169 Ga. App. 347, 1983 Ga. App. LEXIS 3065

• Court: Court of Appeals of Georgia
• Decided: December 5, 1983
• Docket: 66484
• Status: Published

Opinions

Carley, Judge.

Appellant-plaintiff was injured when the automobile in which she was a passenger collided with that being operated by appellee-defendant, an uninsured motorist. Appellant filed an action against her uninsured motorist carrier and appellee, seeking damages for the pain and suffering occasioned by the injuries she sustained in the collision. The case was tried before a jury and a verdict was returned for appellee. Appellant appeals.

1. Appellant enumerates the general grounds. Our review of the transcript demonstrates that there was sufficient evidence to authorize a reasonable trior of fact to find for appellee. “An appellate court passes on the sufficiency of the evidence, not the weight.” Giordano v. Fed. Land Bank, 163 Ga. App. 390, 391 (294 SE2d 634) (1982). “It is the duty of this court to construe the evidence most strongly in support of a verdict which has been approved by the trial judge.” Associated Mutuals v. Pope Lumber Co., 200 Ga. 487, 496 (37 SE2d 393) (1946). See also Allard Prods. v. Apollo Contractors, 163 Ga. App. 373, 374 (294 SE2d 594) (1982).

2. In related enumerations, appellant asserts error in the trial court’s instructions with regard to the principles of negligence. The jury instruction on negligence given in the instant case was appropriate to the evidence offered and was an accurate statement of the applicable law. When a challenged instruction fairly and accurately presents the substance of an instruction requested by one of the parties, it is not error for the court to decline to use the exact language requested. See Keller v. State, 245 Ga. 522 (265 SE2d 813) (1980); Brooks v. Douglas, 163 Ga. App. 224 (292 SE2d 911) (1982); Hitchcock v. Key, 163 Ga. App. 901 (296 SE2d 625) (1982). The trial court’s instructions on negligence were not erroneous.

3. The evidence authorized the court to give the jury instructions on the statutes pertaining to proper speed and the use of headlights. “It is not error to give an instruction where there is any evidence ... on which to predicate it.” Morse v. MARTA, 161 Ga. App. 405 (288 SE2d 275) (1982). The trial court did not err in giving these instructions.

4. Appellant enumerates as error the giving of a charge on legal accident. The evidence adduced at trial clearly demonstrated that the collision between the two vehicles could only have been caused by the negligence of appellant’s host-driver or the negligence of appellee or the negligence of both. Since, under this evidence, the jury would have been authorized to find that the collision was the result solely of the negligence of appellant’s host-driver, appellee asserts that a charge on the defense of legal accident was not erroneous. See generally Garrett v. Brannen, 164 Ga. App. 10 (296 SE2d 205) (1982).

In Chadwick v. Miller, 169 Ga. App. 338 (-SE2d-) (1983), this court resolved the conflict which theretofore had existed with reference to the defense of accident. In Chadwick, we approved the “strict” definition of legal accident as exemplified by such cases as Morrow v. Southeastern Stages, 68 Ga. App. 142 (22 SE2d 336) (1942), and specifically disapproved the “broad” definition of accident enunciated in cases such as Garrett v. Brannen, supra. “Henceforth, cases in which the negligence of another is relied upon defensively are to be submitted to the jury under general instructions regarding the factual determination of whether or not the defendant was negligent and, if so, whether his negligence was the proximate cause of the injuries sustained. The defense of accident in this state is to be confined to its strict sense as an occurrence which takes place in the absence of negligence and for which no one would be liable. Unless there is evidence authorizing a finding that the occurrence was an ‘accident’ as thus defined, a charge on that defense is error. [Cits.]” (Emphasis in original.) Chadwick v. Miller, supra at 344. The rationale for such a holding is adequately set forth in Chadwick and will not be repeated here.

As noted above, the evidence in the instant case would only authorize findings that the collision was the result of the negligence of either one or the other of the drivers of the two vehicles involved or of both combined. Accordingly, the instant case clearly does not come within the “strict” definition of legal accident and is therefore controlled by Chadwick. “ ‘There was no evidence from which the jury could have found that the collision was an unavoidable accident. Somebody must have been at fault, and the question for the jury to determine was, who was guilty of negligence; and they should have been permitted to go directly into that question, without having their attention distracted by the consideration of the impossible theory that the [appellant’s injuries were] the result of an accident.’ ” Morrow v. Southeastern Stages, supra at 147. “ ‘It is clear from the evidence that [appellant’s] injuries were caused either by the negligence of the [host-] driver of the automobile or that of [appellee] ... The jury returned a verdict for [appellee] in the present case. It may be that the jury reached the conclusion that [appellee] was entirely without fault, and that the negligence of the [host-] driver was the proximate cause of [appellant’s] injuries, but, under the charge which is complained of, it can not be said that its attention was not distracted from the real issues of negligence by a consideration of a theory wholly unauthorized by the evidence.’ [Cit.]” Chadwick v. Miller, supra at 340.

Accordingly, the case is reversed and a new trial ordered.

Judgment reversed.

Shulman, C. J., Quillian, P. J., McMurray, P. J., and Banke, J., concur. Deen, P. J., Birdsong, Sognierand Pope, JJ., concur specially. Decided December 5, 1983. Nick Long, Jr., for appellant. William A. Dinges, for appellee.