Pope v. Pressley

418 S.E.2d 635, 204 Ga. App. 115, 92 Fulton County D. Rep. 466, 1992 Ga. App. LEXIS 706
CourtCourt of Appeals of Georgia
DecidedApril 30, 1992
DocketA92A0534
StatusPublished
Cited by1 cases

This text of 418 S.E.2d 635 (Pope v. Pressley) 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
Pope v. Pressley, 418 S.E.2d 635, 204 Ga. App. 115, 92 Fulton County D. Rep. 466, 1992 Ga. App. LEXIS 706 (Ga. Ct. App. 1992).

Opinion

Beasley, Judge.

Pope sought damages for injuries he incurred in an automobile collision between his vehicle and that of Deborah Pressley. The jury returned a verdict in favor of Pressley, and Pope’s motion for new trial was denied.

The evidence showed that on August 11, 1987, between 7:30 and 8:00 a.m. on a clear, dry day Pope was driving to work on the eastbound lanes of the Stone Mountain Freeway, a six-lane highway divided by a 30-foot grass median. Pope was in the far right lane when Pressley’s car crossed from the westbound lanes across the 30-foot median and two other eastbound lanes to collide head-on with Pope’s car, causing serious injury to both drivers. Pressley was travelling west in the far left lane at 40-45 mph in a 55-mph zone as she crested a hill and saw the cars in front of her stopping, as she knew was typical during rush hour. She had to brake to avoid hitting the car in front of her.

Pressley testified that she did not slam on her brakes but that when she applied her brakes they “locked” and the car did not slow [116]*116down. She made the conscious decision to turn off into the median, thinking that she would avoid hitting another car that way and that her car would coast to an eventual stop. Instead, her car crossed the median and the first two eastbound lanes and collided with Pope’s car. Pressley told the police that her car had malfunctioned, that her brakes had “locked up.” The vehicle was damaged too severely to conduct any tests on the braking system.

The driver directly behind Pressley testified that traffic was moving approximately 40 mph when he observed her car make an abrupt, sharp, very hard right turn into and across the median, and into the oncoming traffic without ever slowing down. Skid marks extended about 60 feet from Pressley’s lane of travel. A few months before the collision Pressley had experienced the brakes briefly locking when she had to make a sudden stop and slammed them on. After that hap.pened, her husband Tom took the car to his father, a professional auto mechanic, to check out the problem. The brakes appeared to both of them to be in good working order, and Tom subsequently drove the car on several occasions without problem. On the morning of the collision Pressley noticed nothing unusual about the braking system before the brakes locked.

Pressley contended the collision was caused by a sudden and unexpected brake failure. Pope argued that the evidence proved both ordinary negligence and numerous violations of the Uniform Rules of the Road and other statutes regulating motor vehicles (OCGA §§ 40-6-1 et seq.; 40-8-50; 40-8-53; 40-8-54) by Pressley; and that negligence per se was established as a matter of law through violations of those statutes. See Cox v. Cantrell, 181 Ga. App. 722 (5) (353 SE2d 582) (1987).

1. (a) In his first two enumerations of error, Pope contends that the trial court erred in refusing to give his requests to charge regarding the shifting of the burden of proof once a violation of a statute is established, and authorizing a finding of negligence per se even without a conviction on a traffic violation. Enumerations of error 3 and 4 challenge the instruction given on the principles of legal accident and sudden emergency.

Exceptions were made regarding these charges after the jury charge only by referencing their numbers.

We assume without deciding in this case that the exceptions were properly made and preserved. The trial court did instruct the jury that in order to recover the plaintiff must prove that the defendant was negligent in one or more ways; that violation of a law or ordinance was negligence per se; that a driver violated the traffic laws if he or she followed another vehicle too closely than was reasonable or prudent, moved in or outside of his or her lane of traffic without first ascertaining if it could be done with safety, failed to drive on the [117]*117right-hand side of the highway or into the median of a divided highway, or drove at a speed greater than is reasonable or prudent under the conditions; that the plaintiff contended the defendant had violated these laws and it was the jury’s duty to determine if any of these violations had taken place; and that even if it found that the defendant did not violate any of these laws it could still find that the defendant was negligent, but in such a case the burden of proof remained with the plaintiff.

In light of these instructions it was unnecessary for the trial court to instruct the jury about traffic tickets or convictions since the jury had only to determine whether a statute or ordinance had been violated to find defendant negligent. “Reviewing the charge as a whole and the [refused requests] in this context, [cit.], the charge given covered the general principles of negligence and repeatedly covered negligence per se. . . . It also appears that the charge may have weighed in [Pope’s] favor. [Pressley] denied negligence and also denied intentionally violating the [traffic laws], so that the jury could have rejected negligence per se, [cit.], and [Pope’s] evidence supported the alternative theory that [Pressley’s actions were] reckless and therefore negligent even if not negligent per se. [Cit.]” Lashua v. Tomlin, 194 Ga. App. 3, 4 (389 SE2d 767) (1989). The failure to give Pope’s requested charges does not show harmful error as a matter of law so as to require their consideration under OCGA § 5-5-24 (c). Lissmore v. Kincade, 188 Ga. App. 548, 551 (4) (373 SE2d 819) (1988).

(b) As to Pope’s objections to the charges on legal accident and sudden emergency, again we will merely assume proper raising and presentation.

There was evidence that defendant was not negligent in the maintenance of the brakes or in the operation of her vehicle on this occasion. There was evidence that a sudden emergency not arising from any failure to exercise due care on her part by act or omission, led to the collision. There was evidence that the occurrence was one which “[took] place in the absence of negligence and for which no one would be liable.” Chadwick v. Miller, 169 Ga. App. 338, 344 (312 SE2d 835) (1983).

Thus, as in Kelly v. Adams, 197 Ga. App. 574, 575 (1) (398 SE2d 848) (1990), “a charge on legal accident was appropriate. Along with evidence that the [collision] could have been caused in whole or in part by negligence, there was also evidence authorizing the jury to conclude that [it] was not proximately caused by the negligence of any party.” Similarly, “[w]hether or not an emergency existed is a question for the jury except in plain and palpable cases. [Cits.]” Kelly, supra at 576 (2). Charges on legal accident and sudden emergency were supported by the evidence and properly submitted to the jury. Accord Wilhite v. Tripp, 179 Ga. App. 428 (1) (346 SE2d 586) [118]*118(1986), which points to the “unforseen or unexplained cause” aspect of the law of accident. In this regard, see also Shennett v. Piggly Wiggly Southern, 197 Ga. App. 502, 504 (4) (399 SE2d 476) (1990).

2. After the jury began its deliberations, upon its request the trial court recharged it on the law of negligence and legal accident.

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Bluebook (online)
418 S.E.2d 635, 204 Ga. App. 115, 92 Fulton County D. Rep. 466, 1992 Ga. App. LEXIS 706, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pope-v-pressley-gactapp-1992.