Benson v. Hunter , 184 Ga. App. 40 ( 1987 )

Banke, Presiding Judge,

dissenting.

The majority has effectively ruled that it is never reversible error to refuse to give a requested charge on accident in a personal injury action, so long as a “full and fair charge on the general principles of negligence law” is given. Were we living in an era in which juries were demonstrably prone to be mean and begrudging in their treatment of personal injury claims, I might agree. However, from my vantage point as a judge of this court, it occurs to me that such is not the case. Instead, it more often seems that jurors in this litigation-oriented day and age are laboring under the charitable though misguided notion that misfortune is itself compensable, regardless of fault. In an appropriate case, a charge on accident may well have the salutory effect of disabusing the jurors of any such predisposition. On the other hand, assuming the evidence in a particular case warrants a charge on accident, I do not perceive how the plaintiff could be prejudiced merely by having it called to the jury’s attention that it is possible, at least, for the injury to have occurred notwithstanding the absence of negligence on the part of either of the parties to the lawsuit.

Both the appellee-plaintiff and the appellant ambulance driver in this case testified that visibility at the intersection where the collision occurred was obscured by vegetation, with the result that it was not possible for them to see each other until they had already driven their vehicles into the intersection. Although in doing so the ambulance drove through a stop sign without coming to a complete stop, the jury would have been authorized to conclude from the evidence that he was in compliance with OCGA § 40-6-6 (b) (2), which permits the driver of an authorized emergency vehicle responding to an emergency call and making use of an audible signal and a flashing or revolving red light to proceed through a stop sign “after slowing down as may be necessary for safe operation.”

The majority does not take issue with the appellants’ contention that the evidence supported a charge on accident but instead holds that the failure to give such a charge cannot be considered reversible error. In accordance with the previously existing rule in this state that a charge on accident is required if, under some theory of the case, injury may be considered a mere casualty due to the negligence of neither party, Fred F. French Mgt. Co. v. Long, 169 Ga. App. 702 (1) (314 SE2d 666) (1984), I would hold that the trial court’s refusal to give the appellants’ requested instruction on accident establishes ground for a new trial.

Decided July 14, 1987 Rehearing denied July 31, 1987 James R. Osborne, for appellants. George Pennebaker, Donald B. Howe, Jr., for appellee. I am authorized to state that Presiding Judge Deen, Judge Sognier and Judge Beasley join in this dissent.