holding that a plaintiff did not assume the risk of harm, when, while he may have been contributorily negligent in failing to avoid the accident, he could not foresee that the defendant’s truck would swerve out of its lane into oncoming traffic and cause a head-on collision, and after the truck swerved, the plaintiff did not make a conscious and voluntary decision to proceed with the collision
How later courts described this case
- holding that a plaintiff did not assume the risk of harm, when, while he may have been contributorily negligent in failing to avoid the accident, he could not foresee that the defendant’s truck would swerve out of its lane into oncoming traffic and cause a head-on collision, and after the truck swerved, the plaintiff did not make a conscious and voluntary decision to proceed with the collision
- holding that evidence did not support assumption-of-the-risk charge when plaintiff-police officer was speeding and straddling median at the time of the collision given that there was no evidence that once truck swerved into his lane, officer made the conscious decision to proceedandriskacollision
- holding that an assumption of risk defense would only apply if there was evidence that, “after the truck had swerved into his lane of traffic, [the officer] had then made a conscious and voluntary decision to proceed and risk a head-on collision”
- evidence did not demand a verdict for the appellees, and jury may have returned such a verdict on the erroneous premise that the death resulted from the decedent's own voluntary assumption of the risk
Written by the judges who cited it.
Later courts went against this
Disapproved on other grounds by Robinson v. Star Gas of Hawkinsville, Inc., 269 Ga. 102 (1998)
200 Ga. App. 822, 823-825 (4) (409 SE2d 524) (1991), disapproved on other grounds, Robinson v. Star Gas of Hawkinsville, 269 Ga. 102, 104 (1) (498 SE2d 524) (1998).
The opinion
Andrews, Judge,
dissenting.
I must respectfully dissent. The majority’s analysis by label (assumption of risk) is inappropriate and incorrect. By whatever label, the charge at issue correctly states a principle of Georgia law. Southland Butane Gas Co. v. Blackwell, 211 Ga. 665 ( 88 SE2d 6 ) (1955). There was evidence to support the jury’s application, if it so chose, of the rule. Accordingly, it was not error for the trial judge to give the charge.
I join in Judge Beasley’s dissent with respect to Division 5. I am authorized to state that Presiding Judge Banke joins in this dissent.