Jones v. Smith

Court of Appeals of Georgia

Jones v. Smith

184 S.E.2d 482, 124 Ga. App. 563, 1971 Ga. App. LEXIS 1023

CourtCourt of Appeals of Georgia

DecidedSeptember 7, 1971

Docket46118

StatusPublished

Cited by1 cases

This text of 184 S.E.2d 482 (Jones v. Smith) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Jones v. Smith, 184 S.E.2d 482, 124 Ga. App. 563, 1971 Ga. App. LEXIS 1023 (Ga. Ct. App. 1971).

Pincite

Opinion

Pannell, Judge.

1. In an action brought by a complainant passenger injured as a result of an automobile collision where the evidence would authorize a finding that one defendant (the appellant) on his proper side of the roadway had just started a turn to his left to enter a driveway as the other defendant, driving in the opposite direction, crested a hill approximately 100 feet distant driving at an excessive rate of sp.eed and obviously on a collision course with the defendant appellant making his left turn, the question of whether the defendant appellant was negligent in continuing his course in an effort to avoid the collision rather than stopping his automobile involved the doctrine of an emergency choice, and the trial court, upon request, erred in failing to charge thereon. Douglas v. Herringdine, 117 Ga. App. 72, 76 (159 SE2d 711); Patton v. Smith, 119 Ga. App. 664 (168 SE2d 627).

While the pre-trial order is generally controlling as to issues upon the trial (Polk v. Fulton County, 96 Ga. App. 733, 734 (101 SE2d 736)), yet where the pre-trial order shows that the defendant appellant contended he was not negligent as charged, such contention made an issue as to whether he was negligent or not negligent, and this issue included the question of the proper exercise of the defendant appellant’s judgment under an emergency situation as a consideration of this question is necessary to determine whether the defendant was or was not negligent as charged.

2.' A new trial having been granted for the above reasons, it is not necessary to determine whether the trial court erred in overruling the appellant’s motion for new trial as to the remarks of counsel therein referred to, which were improper, but are not likely to occur on the subsequent trial.

Judgment reversed.

Bell, C. J., and Deen, J., concur.

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Pannell, Judge.

1. In an action brought by a complainant passenger injured as a result of an automobile collision where the evidence would authorize a finding that one defendant (the appellant) on his proper side of the roadway had just started a turn to his left to enter a driveway as the other defendant, driving in the opposite direction, crested a hill approximately 100 feet distant driving at an excessive rate of sp.eed and obviously on a collision course with the defendant appellant making his left turn, the question of whether the defendant appellant was negligent in continuing his course in an effort to avoid the collision rather than stopping his automobile involved the doctrine of an emergency choice, and the trial court, upon request, erred in failing to charge thereon. Douglas v. Herringdine, 117 Ga. App. 72, 76 (159 SE2d 711); Patton v. Smith, 119 Ga. App. 664 (168 SE2d 627).

While the pre-trial order is generally controlling as to issues upon the trial (Polk v. Fulton County, 96 Ga. App. 733, 734 (101 SE2d 736)), yet where the pre-trial order shows that the defendant appellant contended he was not negligent as charged, such contention made an issue as to whether he was negligent or not negligent, and this issue included the question of the proper exercise of the defendant appellant’s judgment under an emergency situation as a consideration of this question is necessary to determine whether the defendant was or was not negligent as charged.

2.' A new trial having been granted for the above reasons, it is not necessary to determine whether the trial court erred in overruling the appellant’s motion for new trial as to the remarks of counsel therein referred to, which were improper, but are not likely to occur on the subsequent trial.

Judgment reversed.

Bell, C. J., and Deen, J., concur.

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Bluebook (online)

184 S.E.2d 482, 124 Ga. App. 563, 1971 Ga. App. LEXIS 1023, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-smith-gactapp-1971.

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