Tolbert v. Duckworth

Carley, Presiding Judge. Appellant-plaintiffs brought suit, seeking to recover for injuries allegedly resulting from a vehicular collision. The case was tried before a jury, and a verdict was returned in favor of appellee-defendants. Appellants appeal from the judgment entered by the trial court on the jury’s verdict and enumerate as error only the trial court’s giving of a charge on the principle of legal accident. 1. Appellants urge that the giving of a charge on legal accident should no longer be sanctioned. Although it has been recognized that a charge on legal accident is potentially confusing and misleading to juries and is redundant of the general principles of negligence law, “Georgia has not discarded accident as a proper subject for jury instructions. . . . [Cit.]” Chadwick v. Miller, 169 Ga. App. 338, 342 (1) (312 SE2d 835) (1983). Even assuming that the abolition of the giving of a charge on legal accident is not a matter solely for the Georgia Supreme Court (but see Savannah Elec. Co. v. Jackson, 132 Ga. 559, 562 (4) (64 SE 680) (1909)), it is clear that a majority of this court as presently constituted is not so inclined. See Smoky, Inc. v. McCray, 196 Ga. App. 650, 652 (5) (396 SE2d 794) (1990). 2. Appellant also urges that a charge on legal accident was not authorized by the evidence. “A review of the record shows that there was . . . evidence which would have authorized the jury to find that, notwithstanding appellee[-driver]’s exercise of ordinary reasonable care, he lost control of his [vehicle] on the rain-slick highway [at a point where water was pouring across the road due to insufficient drainage], hydroplaned into the lane of on-coming traffic and struck the vehicle that was being operated by appellant[-driver]. Accordingly, the trial court did not err in giving a charge on the defense of legal accident. [Cit.]” Whitehead v. Coffey, 198 Ga. App. 587 (402 SE2d 311) (1991). See also Jump v. Benefield, 193 Ga. App. 612, 614-615 (2) (388 SE2d 864) (1989); Reed v. Heffernan, 171 Ga. App. 83, 87 (2) (318 SE2d 700) (1984). Appellee-driver’s guilty plea to driving too fast for conditions “did not constitute an irrebuttable admission that the collision was the proximate result of negligence on [his] part, [cit.] . . .” Martini v. Nixon, 185 Ga. App. 328 (1) (364 SE2d 49) (1987). See also Peacock v. Strickland, 198 Ga. App. 406 (1) (401 SE2d 601) (1991); Williams v. Calhoun, 175 Ga. App. 332 (333 SE2d 408) (1985). Judgment affirmed. Beasley, J., and Judge Arnold Shulman *874 concur. Decided January 28, 1992 Reconsideration denied February 4, 1992 Hudson & Montgomery, David R. Montgomery, Kenneth Kalivoda, for appellants. Carey, Deal, Jarrard & Walker, J. Nathan Deal, McClure, Ramsay & Dickerson, John A. Dickerson, Harben & Hartley, Phillip L. Hartley, for appellees.