# Brown v. Nutter > Court of Appeals of Georgia · January 14, 1972 · 125 Ga. App. 449 URL: https://www.frixlaw.com/law-library/cases/9584145 ## Case - **Full name:** Brown v. Nutter - **Court:** Court of Appeals of Georgia - **Decided:** January 14, 1972 - **Citations:** 125 Ga. App. 449; 188 S.E.2d 133; 1972 Ga. App. LEXIS 1366 - **Precedential status:** Published - **Opinion:** Dissent by Evans - **Judges:** Jordan, Bell, Hall, Eberhardt, Deen, Quillian, Clark, Pannell, Evans - **Cited by:** 18 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9584145 ## Opinion text *454 Evans, Judge, dissenting. I cannot agree to the majority view of this case as to Divisions 6 and 7. Counsel for plaintiff called the court’s attention to the fact that he had not charged on the failure of defendant to maintain a proper look-out and proper control of his vehicle. The court refused to charge thereon. One of the contentions of plaintiff was that defendant failed to maintain a proper look-out ahead, whereby he might have seen the lead automobile’s red tail-light; and that there was no obstruction between the two cars to prevent defendant’s seeing the lead car. There was evidence submitted in support of this contention. This evidence authorized a charge that the driver of an automobile has no right to assume that the road is clear, but must keep a vigilant look-out ahead for pedestrians and traffic, or that the driver of a motor vehicle has no right to assume that the road ahead of him is clear of traffic and he must maintain a diligent look-out therefor. Leggett v. Brewton, 104 Ga. App. 580 (3) ( 122 SE2d 469 ). The lower court failed to charge this contention and at the end of said charge counsel for the plaintiff requested a proper charge thereon as one of the elements of the acts of negligence alleged. It will be noted that plaintiff objected at the end of the charge in this language: "Your Honor, the court did not charge on the failure to maintain a proper look-out and control . . .” (Emphasis supplied.) The trial court refused the request of plaintiff’s counsel, but later, when the jury requested further instructions, he did touch on "look-out” in the briefest possible fashion, but did not charge on the auto driver’s duty to maintain proper control of the car. The language of the court here in response to the jury’s request was as follows: "All right sir, the plaintiff contends that the defendant was guilty of what is known as common law negligence. That is, failure to keep a proper look-out and I don’t recall the other allegations in the petition . . .” (Emphasis supplied.) Although the court did not recall "the other allegations in the petition” just a short time before, plaintiff’s counsel had *455 requested him to correct and amend his charge by charging on (1) failure to keep a proper look-out, and (2) failure to maintain control. As to "look-out,” the charge as given did not adequately cover the subject, it being couched in such language as to suggest that this was simply a contention of the plaintiff. The court should have gone further and should have instructed the jury that "failure to keep a proper look-out is common law negligence” — rather than leaving it as only a contention of the plaintiff that such is common law negligence. But the greater damage was the court’s failure to charge on the duty of defendant to maintain control of the car; and his statement that "I don’t recall the other allegations in the petition” can hardly be considered as a substitute for a proper charge on this subject. As to the failure to charge on "look-out,” see Kirkland v. Wheeler, 84 Ga. App. 352, 364 ( 66 SE2d 348 ); Claxton v. Hooks, 68 Ga. App. 383, 385 ( 23 SE2d 101 ); Leggett v. Brewton, 104 Ga. App. 580 (3), supra. Therefore, the lower court erred in refusing to give a correct charge that the driver of a motor vehicle has no right to assume that the road ahead of him is clear of traffic and he must maintain a diligent look-out. Code Ann. § 68-1626 clearly sets forth the duty of drivers of motor vehicles as follows: "In every event speed shall be so controlled as may be necessary to avoid colliding with any person, vehicle ... on or entering the highway. . . .” (Emphasis supplied.) Further, the Supreme Court of Georgia holds in Teague v. Keith, 214 Ga. 853 (1) ( 108 SE2d 489 ): "It is the duty of the operator of a motor vehicle to keep it under reasonable control so that he may void collisions with, and injury to, other users of the highway who are themselves exercising reasonable care, if he may avoid such collision or injury by the exercise of ordinary care on his part.” (Emphasis supplied.) Also, see Ellis v. Southern R. Co., 96 Ga. App. 687, 697 ( 101 SE2d 230 ); Brewer v. James, 76 Ga. App. 447, 452 *456 ( 46 SE2d 267 ); Garmon v. Cassell, 78 Ga. App. 730 ( 52 SE2d 631 ). The general charge by the court on the exercise of ordinary care was insufficient instruction to the jury here. Therefore, I would reverse the learned trial judge in this case. I am authorized to state that Judge Pannell concurs in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9584145. Public record. Not legal advice.