Eidson v. Mathews

Whitman, Judge.

This case arises out of a collision between two automobiles. The car being driven by defendant’s testate, Howell P. Eidson, was alleged to have collided with plaintiff’s car. The complaint alleges that the plaintiff suffered personal injury and property damages caused by the negligence of Eidson. A trial was had with the jury finding in favor of the plaintiff and awarding damages. The defendant appeals from the trial court’s order denying his motion for new trial and enumerates the same as error. Also enumerated as error is the denial of a motion for judgment notwithstanding the verdict. Held:

1. The motion for new trial, as amended, contended that the trial court invaded the province of the jury in its instructions to the jury and committed reversible error in so doing. We have reviewed that portion of the charge complained of and agree with the appellant.

Timely exceptions were made to the following portions of the trial court’s charge: “[T]he plaintiff in this case has made out a prima facie case under the law. The evidence is undisputable in this case that the deceased, Howell P. Eidson, ran across the street and his automobile collided with that driven by the plaintiff in the case. . . Now, Gentlemen, in this case, I have already instructed you that the plaintiff has made out a prima facie case against the defendant, since he has shown by the undisputed evidence that the defendant’s acts were responsible for the collision.”

These instructions were tantamount to an instruction that the plaintiff had proved every element required for recovery in a case such as this, to wit, duty owed, breach thereof, damage, and that such damage was proximately caused by the breached duty.

Whether certain acts constitute negligence and, further, the proximate cause of the injury, are questions for the jury to decide and any instruction which suggests or states that such has been shown invades the province of the jury. Johnson v. Wofford Oil Co., 42 Ga. App. 647 (157 SE 349).

“A trial judge may not tell a jury what acts would or would not constitute negligence unless the acts have been declared by statute to be negligent.” Watson v. Riggs, 79 Ga. App. 784, 785 (54 SE2d 323). “It is the duty of the judge to explain to the jury what is meant by ordinary care, but he cannot rightfully direct them that certain facts recited by him do or do not constitute ordinary care in a given case. Negligence and diligence are questions for the jury, to be determined in each case upon its own facts, and the judge would invade their province should he declare when either is proved. The court has qualified this rule to the extent only of deciding that, where the law itself requires the performance of any act, the judge may instruct the jury that due diligence would require the doing of such act.” Tift v. Jones, 77 Ga. 181 (6) (3 SE 399).

The exception referred to in the Tift and Watson cases, as to when a court may state to a jury that an act constitutes negligence, has regard to negligence per se. “ [W] hen any specific act or dereliction is so universally wrongful as to attract the attention of the lawmaking power, and this concrete wrong is expressly prohibited by law or ordinance, a violation of this law, a commission of the specific act forbidden, is, for civil purposes, correctly called negligence per se. In those jurisdictions in which the application of the facts to the law rests with the jury, the court cannot primarily declare that any particular concrete act or state of circumstances amounts to a breach of duty, unless the law so expressly declares; this finding is left to the jury; but if the law itself puts its finger on a particular thing and says ‘this is wrong/ the court may also (for there is no question as to a fact which the law says exists) put its finger on that same thing and say, ‘This is negligence — negligence per se.’ ” Platt v. Southern Photo Material Co., 4 Ga. App. 159, 163 (60 SE 1068).

But even in those cases in which a trial court may instruct the jury that an act would be negligence per se if the jury were to find that the act had been committed, it is still a jury question as to whether the particular “negligence per se” act was the proximate cause of the injury and damage for which recovery is sought. Lane v. Varner, 89 Ga. App. 47 (2b) (78 SE2d 528). See also Stanfield v. Johnson, 95 Ga. App. 349, 353 (98 SE2d 106), reversed as to another party, Gulf Oil Corp. v. Stanfield, 213 Ga. 436 (99 SE2d 209).

2. The trial court did not err in overruling the defendant’s motion for judgment notwithstanding the verdict. The evidence did not demand a verdict for the defendant.

3. We will discuss one other portion of the charge which is enumerated as error as it is likely to arise on the new trial.

The appellant contends that the trial court erred in giving the following charge: “Gentlemen, the burden of proof, in reference to an affirmative defense, rests upon the defendant in the case, and the defendant must show, by a preponderance of the evidence in the case, that the deceased, Howell P. Eidson, did have a stroke immediately prior to the collision, and that the collision was an act of God, rather than caused by any negligence on the part of the decedent.”

Submitted April 8, 1969 Decided October 20, 1969 Rehearing denied November 25, 1969

The charge is contended to have been erroneous for the reason that it is the burden of the plaintiff to show that the collision resulted from some conscious act or endeavor on the part of the defendant; that evidence of a defendant’s incapacitation is evidence to be considered in determining the defendant’s negligence and is not an affirmative defense in the sense, that it must be affirmatively alleged and proved.

The charge was not erroneous for the reasons assigned. We know of no presumption, with regard to one out driving an automobile, that he is unconscious until shown to be conscious. Cf. Holcombe v. State, 5 Ga. App. 47 (4) (62 SE 647). The appellant relies upon the case of Freeman v. Martin, 116 Ga. App. 237 (156 SE2d 511), where a motion for nonsuit was sustained and affirmed on appeal. In that case Freeman was a passenger in a car being driven by Martin and there was a collision with a utility pole. Freeman, the only witness, both alleged and testified that Martin slumped unconscious in the driver’s seat before the collision occurred. The fact of unconsciousness prior to the collision was admitted. There is no such admission in the present case. The instruction regarding the burden of proving the defense, an Act of God, was not erroneous for the reasons assigned. By Code § 102-103, “act of God,” among other things, means sudden illness, and an act of God constitutes a defense in respect of which burden of proof is on a defendant to establish such defense. See Sampson v. General Electric Supply Corp., 78 Ga. App. 2, 8 (50 SE2d 169).

The trial court erred in denying the defendant’s motion for a new trial for the reasons set forth in Division 1.

Judgment reversed.

Bell, C. J., Jordan, P. J., and Quillian, J., concur. Pannell, J., concurs specially. Hall, P. J., Eberhardt and Deen, JJ., dissent as to Division 3 of the opinion. Evans, J., did not participate. Powell, Goldstein, Frazer & Murphy, Frank Love, Jr., Randall L. Hughes, for appellant. John I. Kelley, Foster & Fudge, for appellee.