1. The defense of contributory negligence is affirmative in nature, and there is no burden on the plaintiff to prove lack of contributory negligence in making out his case.
2. Documentary evidence not in lieu of oral testimony may be sent with other papers to the jury room.
3. Where the plaintiff's testimony is to the effect that his stopping his vehicle in the center of a two-lane northbound freeway was due to a sudden emergency where by reason of snow and fogging of the windshield he was unable to see ahead, and the defendant offers the theory of pure accident as one of his defenses, it was not error to charge the jury on the theory of accident.
4. The doctrine of assumption of risk applies only where the actor, with full appreciation of the danger involved and without restriction of his freedom of choice by circumstances or coercion, deliberately chooses an obviously perilous course of conduct. The evidence in this case did not authorize an instruction to the jury on this subject.
5. The right to a thorough and sifting cross examination should not be abridged. It was not error to allow defendant's counsel to cross examine the plaintiff as to salary paid him during a period of time soon after his injuries were incurred, especially as the plaintiff sued for lost past and future earnings as well as for pain and suffering.
This case involves a multi-car collision on all expressway within the city limits of Atlanta. The plaintiff Whitehead, driving north in the outside lane, ran into difficulty with visibility ahead due to rain and snow. He testified that he pressed the "defogger" button and for some reason the windshield immediately fogged over completely so that he was unable to see ahead; he rolled down the left window, edged toward the center line of the roadway, and slowed or stopped. Murray, operating a wrecker towing a Volkswagen immediately behind Whitehead in his lane of travel, noticed the right blinker light and brake lights, pulled off the right side of the road and stopped. A white Chevrolet automobile in the left northbound lane was brought by its driver, who observed plaintiff's action, to a stop immediately adjacent to the cement median line on its left. These three vehicles effectively blocked all northbound lanes, according to witnesses. The defendant Seymour driving a tractor-trailer belonging to the defendant Custom Canners, Inc., was following the white Chevrolet on the left hand lane for northbound traffic: it either skidded or was turned into the center of the road an hit plaintiff's vehicle from the rear; Whitehead's vehicle, in turn, burst into flames, crossed the median, and struck a southbound automobile. Upon the trial of the case the jury returned a verdict for the defendant, and plaintiff appeals.
1. The court instructed the jury: "The burden of proof is on the plaintiff, Mr. Whitehead; and in order for him to obtain a verdict in his favor by you the burden is on him to prove by a preponderance of the evidence not only that the defendants were negligent in one or more of the ways set fort in the plaintiff's petition but also that such negligence by the defendants was the proximate cause of his damage, if any." He then stated: "In addition to the foregoing, the burden is also on the plaintiff to prove by a preponderance of the evidence that he could not have avoided the damage caused by the defendants' negligence, if any, by the exercise of ordinary care on his part. In other words, before the plaintiff would be titled to a verdict in his favor in this case, the burden is on him to prove by a preponderance of the evidence at least three things: first, that the defendants were negligent of at least one of the acts of negligence set forth in his petition; second, that such negligence by the defendants was the proximate cause of his damage, if any, and, third, that he could not have avoided such damage by the exercise of ordinary care on his part." The instruction was error because proof of ordinary care on the part of the plaintiff in discovering and avoiding the negligence of the defendant is no part of the plaintiff's case in chief. "It is insisted, however, that the plaintiff's husband, by the exercise of ordinary care and diligence upon his own part, could have avoided the consequences of the defendant's negligence, and for that reason the plaintiff could not recover. The burden of proof rests upon the defendant to establish this defense. Civil Code 5160 [now Code 38-103]; Falkner v. Behr, 75 Ga. 671
; City Council of Augusta v. Hudson, 88 Ga. 599 (3)
; Ga. Midland R. Co. v. Evans, 87 Ga. 675
." Williams v. Southern R. Co., 126 Ga. 710
, 711 (55 SE 948
). An instruction erroneously casting the burden of proof on the losing party as to a substantial issue in the case in usually reversible error. Cf. Morgan v. Automobile Financing, Inc., 180 Ga. 394 (2) (178 SE 721)
. In this case the defendant of course denied that the collision was due to any negligence on its part, and the court erred in charging that the plaintiff, if he proved such negligence, must go further and prove also that he could not have avoided its consequences, this being an affirmative defense. Purcell v. Hill, 111 Ga. App. 256 (141 SE2d 153)
; Jackson v. Merritt Hdw. Co., 26 Ga. App. 747
, 749 (107 SE 394
3. Where, as here, the defendants pleaded accident as one of their theories of defense, and the plaintiff's testimony was to the effect that his vehicle was in the middle of the freeway due to the unforeseen event of the windshield logging up so that he could not see, and the evidence as a whole does not demand the finding that except for the negligence of some human agency the collision would not have occurred, it was proper to charge on this subject. Cobb v. Big Apple Supermarket of Columbus, 106 Ga. App. 790 (128 SE2d 536)
4. While there was testimony in this case from which a jury might have found that the plaintiff was injured due to a sudden emergency caused by forces over which he had no control, there was also evidence authorizing a verdict for the defendant on the ground that the plaintiff, when he found he could not see through his front windshield, might have taken immediate steps, by rolling down the window on his side of the vehicle, to avoid steering it into the center of the roadway and there coming to a stop, endangering not only himself but also following traffic. Assumption of risk, however, insofar as it applies to tort cases at all, goes beyond this and assumes that the actor, without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not. "It is the situation in which one voluntarily takes the risk of a danger which is so obvious that he knows or must know of it, as in trying to beat a rapidly approaching train across the track, or in accompanying one who he knows is about to engage in a drag race, or in walking out onto a frozen pond where the ice is thin, etc." Yandle v. Alexander, 116 Ga. App. 165
, 167 (156 SE2d 504
). The plaintiff in this case cannot be said to have made a voluntary and knowing choice to stop in the middle of the freeway in such manner as to assume all risk of injury regardless of negligence on the part of any other person. It was accordingly error to give the defendant's requested charge on this subject.
5, 6. The remaining headnotes need no further elaboration. The seventh enumeration of error is not passed upon since the case will be tried again and the name of the witness referred to in this excerpt from the charge can be ascertained in the meantime if plaintiff so desires and if it is in the possession of the defendant.
Judgment reversed. Bell, P. J. . and Eberhardt, J., concur.