Askew v. Carroll

Whitman, Judge. Carroll sued Askew for damages, alleging that Askew negligently struck him in the head with a golf club, causing extensive damage to plaintiff’s left eye. A trial was had and a verdict was returned for the defendant. The judgment on the verdict was reversed on appeal because of error in the charge and error in refusing to give a request for charge, making a new trial necessary. Carroll v. Askew, 119 Ga. App. 224 (166 SE2d 635). Thereafter, Askew moved for a summary judgment based on the pleadings, the testimony of witnesses on the first trial and the affidavit of an eyewitness, Otis F. Jones, Jr., who was located subsequent to the first trial. The motion was denied and Askew has appealed, accompanied by a certificate for review, enumerating the denial of his motion as error. Held: The evidence conflicts throughout as to where the parties were [306] located with relation to each other and with relation to the first tee, as to whether the area was congested, whether the defendant who was “warming up” in the vicinity of the first tee had been swinging his clubs continuously for a few minutes, or whether there might have been pauses, whether Carroll walked into Askew’s club while it was in motion, or whether Askew just took a swing of his club after a pause without looking to see whether the area around him was still clear of people. Argued October 7, 1969 Decided March 4, 1970. Henry N. Payton, for appellant. Glover & Davis, J. L. Glover, Welborn B. Davis, Jr., for appellee. It is for the jury to decide, from this conflicting evidence, what took place, and whether what did take place under proper instructions from the court amounted to negligence by Askew, whether both were negligent, and whether Carroll was in the exercise of care for his own safety. Code Ann. § 81A-156 (c) (Ga. L. 1966, pp. 609, 660, as amended.) The trial court did not err in denying the defendant’s motion for summary judgment. Judgment affirmed. Jordan, P. J.', and Evans, J., concur.