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Action for damages. Chatham Superior Court. Before Judge Harrison.
The evidence in this case is to the effect that the defendant, driving at a very slow rate of speed and in a careful and prudent manner, applied his brakes upon approaching an intersection, that the braking system and tires of his automobile were in no known manner defective, but that he nevertheless for some unexplained reason due either to slipping, skidding, or temporary brake failure, collided with the rear of the automobile immediately preceding him. Under such circumstances a verdict for the defendant was authorized and the elements of emergency and accident were involved so as to authorize a charge on these issues.
The plaintiff in the trial court, plaintiff in error here, filed an action for damages in the Superior Court of Chatham County alleging that as she was operating her automobile on a city street and slowed for an intersection controlled by a traffic signal with a flashing yellow light the defendant, operating an automobile in the same line of traffic, failed to stop but drove into the rear of plaintiff's vehicle as a result of which she sustained severe bodily injuries. Upon the trial of the case it appeared that there were no eyewitnesses to the collision other than the parties; the plaintiff did not observe the defendant until his car hit hers, and the defendant's uncontradicted testimony was as follows: "I was familiar with the flashing signal light that is located at that intersection . . . We had both stopped at the red light prior to this flashing signal at the intersection. The flashing signal is approximately half a block from the red light. It was raining or drizzling this particular morning and I observed the automobile of Mrs. Cartey approximately half a block before the flashing signal when she brought her car to a stop at the red light and I brought mine behind her. After leaving the red light signal I proceeded to follow her in the same direction on Memorial Drive, and I realized at that time that the weather was wet and the road condition was perhaps more hazardous than normally it would be if the road were dry . . . I knew when I left the red light that I was going to have to slow down and that she was going to have to slow down at this light that was located half a block down the road . . . She proceeded to bring her automobile to a slow stop at the other light. I applied my brakes and they just didn't hold and that caused my automobile to run into the rear of her car. They just didn't stop the car. I would say that I was going approximately 10 to 15 miles per hour at the time . . . I would say that my brakes were operative and that they didn't stop it. I did not realize that my brakes were not operative until that particular time. I was approximately two car lengths behind Mrs. Cartey and traveling at 15 miles per hour approximately when I realized that . . . I didn't have time to do anything when I realized my brakes were not going to hold. I guess I could have turned my wheel in either direction, but 1 don't know whether it would have done any good or not. I tried my brakes and they didn't work and I slid into the rear. My automobile had an emergency brake. I did not try to reach for the emergency brake . . . I would say it slid, because my brakes worked perfectly after that. When I applied my brakes . . . it worked just like I didn't have any brakes at all except the pedal didn't go to the floor . . . I told the officer that I didn't know exactly what happened, that when I applied my brakes they didn't stop
so there was evidently something wrong somewhere. Not necessarily something wrong with the brake, it could have been that it slid. As far as I can recall, when I applied the brakes the car continued to roll . . . it looked like it went faster to me, that it picked up speed . . . I checked the brakes after the accident . . . and they worked perfectly and I drove it to work. The only trouble with the failure of the brakes to stop was at the scene of the collision and I had no trouble prior to that time and no trouble subsequent to that time. I think the tires of my automobile were in fair condition, they were all right, they were fine."
The jury returned a verdict in favor of the defendant. The plaintiff filed a motion for a new trial which was overruled and the exception is to this judgment.
1. Special ground 3 complains that the court's charge on the doctrine of emergency was without evidence to support it in that the defendant's testimony showed him to have been aware of the entire factual situation. This contention is not accurate, for the defendant, if he was in fact traveling between ten and fifteen miles per hour, was two car lengths behind the plaintiff, and knew that the plaintiff would slow up or stop at the traffic signal, and did in fact apply his brakes under those circumstances, the brakes and tires both being in good condition, would naturally have expected his car to stop before it hit the preceding vehicle. He was thus confronted by an unexpected situation. There was testimony that the street consisted of two traffic lanes in each direction, suggesting that the defendant might have avoided plaintiff's automobile by steering into the other traffic lane, and also there was his own testimony that the car was equipped with an emergency brake but he made no effort to use it or to turn around the car ahead. The jury might well have found that his failure to take remedial action was negligence, but, in such event, he was entitled to have such negligence considered in connection with the rule of law that one confronted with sudden peril is not held to the same standard of judgment as might otherwise be required. A sudden emergency, such as a brake failure, does not relieve a person from the exercise of ordinary care for his own safety, but is a circumstance to be considered in determining whether ordinary care was exercised. Chitwood v. Stoner, 60 Ga. App. 599 (4 SE2d 605). Nor is the contention accurate that the emergency must be caused by the plaintiff. "The purposes of judicial instructions on the law relating to sudden peril are generally (a) to excuse an act of the plaintiff which would otherwise be negligence on the plaintiff's part diminishing or precluding recovery, or (b) to excuse an act of the defendant which would otherwise constitute negligence as to the plaintiff." Stripling v. Calhoun, 98 Ga. App. 354, 356 (105 SE2d 923). The charge was without error.
2. Special grounds 4 and 5 assign error on the instructions concerning the law of accident, that is, that in law accident means an injury occurring without negligence of either party. Plaintiff contends the charge was error as an abstract principle of law, unsupported by evidence, incomplete, and that it offered the defendant the benefit of a defense to which he was not entitled.
The charge was in the language approved in Brewer v. Gittings, 102 Ga. App. 367 (6) (116 SE2d 500) and is neither incomplete nor abstractly incorrect. It was warranted by the evidence, for an accident in legal contemplation may result from a sudden brake failure which is not due to the negligence of the defendant owner and driver. Mathis v. Mathis, 42 Ga. App. 1 (155 SE 88); Jacobs v. Felmet, 105 Ga. App. 234 (124 SE2d 307). Further, accident without negligence may on occasion result from road conditions. In Jackson v. Martin, 89 Ga. App. 344 (79 SE2d 406) the plaintiff's automobile crossed to the left side of the road resulting in a head-on collision with an approaching automobile. In affirming a verdict for the defendant, this court said: "[T]he total effect of the plaintiff's evidence was that the defendant was traveling on her side of the highway on a rainy day, the pavement was slippery, and just as the two automobiles met each other, the defendant's automobile, which was not being operated at a high rate of speed, for some unexplained reason slipped or skidded across the center line of the highway and collided with the automobile in which the plaintiff's husband was riding. A verdict for the defendant was demanded, as the presence of the defendant's automobile on the wrong side of the road is explained by the plaintiff's evidence as the result of slipping or skidding, but the slipping or skidding of the defendant's automobile, which is without explanation, is as consistent with innocence on the defendant's part as it is with her negligence; and the plaintiff, therefore, failed to carry the burden of proof."
Under these authorities it would have been error not to charge on the law of inevitable accident, and it also follows that the evidence, which shows that the defendant was properly driving and properly applied his brakes but that his automobile nevertheless rolled, slipped, or skidded into the rear of the plaintiff's car for some unexplained reason, authorized a verdict for the defendant.
The remaining special grounds of the motion for a new trial are expressly abandoned. The verdict was authorized by the evidence above set forth.
Judgment affirmed. Carlisle, P. J., and Eberhardt, J., concur.
Kennedy & Sognier, John G. Kennedy, Jr., contra.
Aaron Kravitch, Richardson, Jones & Doremus, Ogden Doremus, for plaintiff in error.
Friday May 22 22:44 EDT

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