The Verdict

A publication of GAPTA, Inc. (Georgia Association of Plaintiffs' Trial Attorneys)

Vol. 2, No.2 February 1960

PRESIDENT'S COLUMN

GAPTA was very fortunate in having two members of our organi­zation delivering lectures at the Mid-Winter Meeting of the NACCA Bar Association in Cincinnati, Ohio, held February 19-21. Hugh G. Head, Jr., of the Atlanta Bar, gave a lecture on Contributory Negligence, and Sam Hewlett, Jr., also of the Atlanta Bar, appeared on a panel of the Railroad Section with leading lawyers of the United States, at which time cases under the Federal Employee's Liability Act were discussed. Mr. Hewlett also delivered­ a lecture on the Safety Appliance Act and its application to yard move­ments. This is a distinct honor to our Association when you consider the fact that NACCA has over 7,500 members. Both Mr. Head and Mr. Hewlett have reported to me that the Mid-Winter Program was excellent and that there was a fine attendance at this meeting in Cincinnati. The Continuing Education Program of NACCA is what has made it the great organization it is today.

I want to call your attention to the fact that we will hold our Annual Meeting in Savannah during the Georgia Bar Association Meeting May 26-27,1960. Under our Consti­tution, we will elect officers at that time for the coming year. I hope all of you will plan to attend this annual meeting.

Sincerely,

CULLEN M. WARD, President

STAFF OF THE VERDICT

Editor ....................... William W. Daniel

Associate Editor ....................... Ross Arnold

NOTES FROM LECTURE OF HUGH G. HEAD, JR. DELIVERED AT THE NACCA MIDWINTER SEMINAR

The law contemplates that every person having the capacity to exercise ordinary care for his own protection against injury will do so, and if he fails to exercise such care, and such failure, concurring and cooperating with the actionable negligence of de­ fendant, contributes to the injury com­plained of as a proximate cause, he is guilty of contributory negligence. Sou. Ry. vs. Parkman, 61 Ga. App. 62; Ga. Power Co. vs. Maxwell, 52 Ga. App. 430.

In the absence of knowledge to the contrary, a person may assume that he is not exposed to, or threatened by, danger which can come to him only from a breach of the duty which others owe to avoid injury to him. Smith v. American Oil Co., 77 Ga. App. 463.

One is not negligent if an ordinarily prudent person would have taken the observable risk of injury. Great A & P Tea Co. v. Chapman, CCA Ohio, 72 F.2d 112.

A plaintiff who finds himself in imminent peril through no fault of his own, and then acts under the excitement of danger and contributes to his own injury, is not necessarily barred by contributory negligence. He may still recover if his actions under the sudden peril were such as any ordinary person exercising ordi­nary judgment would probably have done. Luke v. Powell, 63 Ga. App. 795.

One may assume that all pre­cautions required of others for his protection from injury have been or will be taken, whether the duty to take such precautions arises from the common-law duty to exercise ordinary care to avoid injury to others, or whether it arises from the relations of the parties. Bickley v. Sears, Roebuck, 23 N.E. 2d 505,62 Ohio App. 180.

Knowledge and appreciation of the danger is essential, or plainti ff cannot be charged with contri butory negligence. Aycock v. Houser, 96 Ga. App. 99.

"Last clear chance:" even though the plaintiff exposed himself to the injury, he may still recover if the defendant became aware of the danger to plaintiff in time to avoid hurting plaintiff. Cleveland Ry. Co. v. Masterson, 183 N.E. 873, 126 Ohio St. 42,92 A.L.R. 15.

RECENT GEORGIA CASES OF NOTE

WRONGFUL DEATH - MINOR CHILD WHO HAS BEEN MARRIED - VALUE OF LIFE OF CHILD WHO HAS ONLY WORKED DURING SUMMERS. HELD, THE MOTHER OF A MINOR CHILD MAY RECOVER FOR CHILD'S WRONG­FUL DEATH EVEN THOUGH CHILD HAD BEEN PREVIOUSLY MARRIED. Royal Crown Bot­tling Co. v. Bell, 100 Ga. App. 438 (1959). " As to the value of the life of the deceased, a minor child who had not completed her education nor definitely selected a vocation . . . the plaintiff could . . . recover the value of the life of the deceased as found by the enlightened conscience of the jury.

ACTION AGAINST VENDOR OF FIREWORKS ­ LOSS OF EYE BY l5-YR-OLD PURCHASER WHO DID NOT KNOW OF THE INHERENT DANGER OF FIREWORKS - POWDER FROM "CHERRY BOMB" PLACED IN A "BUFFERIN" BOTTLE ­ DEFECTIVE FUSE - FIREWORKS SOLD IN VIOLATION OF FIREWORKS CONTROL LAW ­ CODE (ANN.) SEC. 92A-802. HELD, THE PETITION STATES A CAUSE OF ACTION. Allen v. Gorinto, 100 Ga. App. 744 (1959).

FOREIGN CASES OF INTEREST FROM RECENT NACCA NEWSLETTERS

DISCOVERY - OF EXISTENCE & EXTENT OF DEFENDANT'S LIABILITY INSURANCE ­ COLORADO SUPREME COURT HOLDS THAT, UNDER RULE_26 (b), RULES OF CIVIL PROCEDURE, PATTERNED ON CORRESPONDING FEDERAL RULE, PRE-TRIAL DEPOSITION MAY PROPERLY INQUIRE INTO EXISTENCE & LIMITS OF DEFENDANT'S LIABILITY INSURANCE SUCH INQUIRIES HELD "RELEVANT TO THE SUBJECT MATTER INVOLVED IN THE PENDING ACTION WITHIN RULE 26 (b) - LIABILITY INSURANCE NOT JUST A PRIVATE COMPACT FOR SOLE KNOWLEDGE OF CARRIER & INSURED - " IT IS ALSO FOR THE BENEFIT OF PERSONS INJURED BY THE NEGLIGENT OPERATION OF INSURED'S MOTOR VEHICLE." Lucas v. District Court, 345 P.2d 1064 (Colo. 1959) (see 23 NACCA Law Journal 129-132; 21 id. 140-145; 22 id. 429-431; 16 id. 409; 421-422).

AUTO ACCIDENTS - REAR-END COLLISIONS ­ PLAINTIFFS (PASSENGER & DRIVER OF TRUCK) INJURED WHEN STRUCK FROM REAR BY DEFENDANT'S CAR - RESUMPTIONS ­

OF NEGLIGENCE FROM DEFENDANT'S REAR­ END COLLISION WITH PLAINTIFF - SUDDEN EMERGENCY - ERROR TO CHARGE ON SUDDEN EMERGENCY, IN DEFENDANT'S BEHALF, WHERE EVIDENCE DISCLOSED THAT DEFEND­ANT'S NEGLIGENCE CONTRIBUTED TO, OR CREATED, SUDDEN EMERGENCY. Bellere v. Madsen, 114 So. 2d 619 (Fa. 1959) (where defendant runs into rear of plaintiff's car while plaintiff is stopped for traffic light or at intersection, there is presumption of defendant's negligence , entitl­ing plaintiff to recover in absence of explanation by defendant) (shows that "emergency doctrine" is shield of innocent & not guilty).

AGAINST EMPLOYERS - FAILURE TO SUP­PLY REASONABLY SAFE PLACE TO WORK, TOOLS, MACHINERY & APPLIANCES ­ FARM WORKER LOST LEFT ARM WHEN HE SLIPPED ON MUDDY GROUND & FELL AGAINST UNGUARDED POWER TAKE-OFF SHAFT OF HAMMERMILL GRINDER - PLAINTIFF PULLED IN TO SHAFT ­ HELD, JUDGMENT FOR PLAINTIFF FOR $ 35,000 AFF'D - 2 SUBMISSIBLE ISSUES OF NEGLIGENCE FOR JURY: ( 1 ) DEFENDANTS ' FAILURE TO SUPPLY REASONABLY SAFE MACHINERY (GUARD COMPLETELY COVERING SHAFT WAS AVAILABLE ON FARM BUT NOT USED; (2) FAILURE TO WARN INEXPERIENCED PLAI NTIFF THAT UNCOVERED SHAFT WAS D ANGEROUS - SEE 67 ALR 2d 1120, 1130 - MATHEMATICIAN'S TESTIMONY PROPERLY ADMITTED REPRESFNT VALVE OF LOST FUTURE EARNINGS - $35,000

AWARD FOR LOST LEFT ARM OF 43-YR.- OLD FARM WORKER NOT EXCESSIVE - DIS­ COUNT RATE IS THAT FOR "REASONABLY SAFE INVESTMENTS WHICH A PERSON OF ORDINARY PRUDENCE, BUT WITHOUT PARTICU­LAR FINANCIAL EXPERIENCE OR SKILL, COULD MAKE IN THE LOCALITY" - NOT THE LEGAL RATE - ANNUITY TABLES AD­MISSIBLE FOR COMPUTING PRESENT WORTH. Von Tersch v. Ahrendson, 99 N.W. 2d 287 (Iowa 1959).

LANDLORD & TENANT - DEATH OF GUEST OF TENANT'S CUSTODIAN - FIRE IN LEASED PREMISES - LESSOR'S FAILURE TO INSPECT & MAINTAIN IN GOOD ORDER ELECTRICAL WIRING SYSTEM - 3 PENNIES IN FUSE BOX SERVICING BUILDING - CIRCUMSTANTIAL EVIDENCE THAT PRESENCE OF PENNIES IN FUSE WELL CAUSED F'IRE RAISED SUB­MISSIBLE ISSUE FOR JURY - HELD: A GUEST IN APARTMENT OF TENANT IS EN­TITLED TO SAME PROTECTION AS MEMBER OF TENANT'S FAMILY. Hutchinson v. Des Moines Housing Corp., 99 N.W. 2d 81 (Iowa 1959).

INFANT PLAINTIFFS - CONTRIBUTORY NEG­ LIGENCE - STATUTORY CONTRIBUTORY NEG­LIGENCE OF CHILD - STANDARD OF CARE ­ ACTION BY 8- & 5-YR.-OLD PEDESTRIANS

STRUCK BY DEFENDANT'S CAR WHILE CROSSING STREET ELSEWHERE THAN CROSSWALK - HELD, CHILD UNDER 7 CONCLUSIVELY PRESUMED INCAPABLE OF CONTRIBUIDRY NEGLIGENCE; CHILD BETWEEN 7 & 14 REBUTTABLY PRESUMED INCAPABLE OF CONTRIBUTORY NEGLI­GENCE - IN ABSENCE OF EVIDENCE TEND­ING TO OVERCOME 8-YR.-OLD CHILD'S PRESUMED INCAPACITY FOR CONTRIBUTORY NEGLIGENCE, IT WAS ERROR TO INSTRUCT ON THAT ISSUE - BECAUSE OF SUCH CHILD'S PRESUMED INCAPACITY, IT WAS ALSO ERROR TO CHARGE ON EFFECT OF CHILD'S VIOLA TION OF SAFETY STATUTE (JAYWALKING PEDESTRIAN TO YIELD RT OF WAY TO VEHICLES) - ERROR TO INSTRUCT IN PEDESTRIAN-AUTO CASES THAT IT IS MORE DANGEROUS TO CROSS AT UNMARKED POINTS THAN AT INTER­SECTIONS, AS SUCH INSTRUCTION GIVES UNDUE EMPHASIS OR PROMINENCE TO ONE CIRCUMSTANCE OR ITEM OF EVIDENCE. Baldwin v. Hosley, 328 S.W. 2d 426 (Ky. 1959) (clearly adopts "sub­jective" standard of conduct for children).

DAMAGES - FOR PAIN & SUFFERING - MATHE­ MATICAL FORMULA FOR ASSESSING - SO MUCH PER MINUTE OR PER HOUR- BOTTA v. BRUNNER REJECTED - TRIAL JUDGE

COULD PROPERLY FIND THAT SUGGESTIONS OF PLAINTIFF'S COUNSEL IN SUMMATION, OF MATHEMATICAL BASIS FOR ASSESSING DAMAGES FOR PAIN & SUFFERING, WAS NOT IMPROPER INVASION OF JURY'S FUNCTION ­" WE ARE NOT INCLINED TO HOLD THAT THE LOWER COURT ERRED IN PERMITTING THE ARGUMENT TO THE JURY . . ." Johnson v. Brown, 345 P.2d 754,759 (Nev. 1959)

(plaintiff's counsel suggested $.10 a minute, $6 an hour, $144 a day for 67 days of pain for "femur being driven violently into pelvis," life saved by tube tapped into chest & 67 days in traction & cast) (see also 23 NACCA Law Journal 255-258; 24 id. 252-253).

AUTO ACCIDENTS - LIABILITY OF LESSEE OF TRUCK­SWITCHMAN GUARDING CROSSING STRUCK BY SWINGING RIGHT REAR DOOR OF DEFENDANT-LES­ SEE'S TRUCK - RES IPSA LOQUITUR PROPERLY APPLIED TO ACCIDENT - RECOVERY FOR IMPAIRMENT OF ABILITY TO WORK O.K. WITHOUT HAV­ING TO SHOW FUTURE LOSS OF EARNINGS - BLACKBOARD NOT ERROR FOR PLAINTIFF'S COUNSEL TO ARGUE $10,000 OR $.90 A DAY FOR 30 YRS. OF FUTURE PAIN - NO ERROR IN PEMITTING USE OF BLACKBOARD - "THERE IS NO ARBITRARY RULE AGAINST SUCH USE OF BLACKBOARD." Bone v. General Motors Corp., 322 S.W. 2d 916 (Mo. 1959) (in holding res ipsa applicable to the swinging-door accident, Ct cited, inter alia, Adam Hat Stores v. Kansas City, 316 S.W. 2d 594 (Mo. 1958).