Bennett v. Kuhlke & Associates, Inc.
Bennett v. Kuhlke & Associates, Inc.
Opinion of the Court
The appellant Bennett, plaintiff below, sued Kuhlke, the contractor, and Augusta Aviation, the owner, for injuries he sustained in the Augusta Airport when a temporary stairway fell. The evidence shows that Bennett was a member of the General Aviation Commission for the airport and was the Chairman of the Safety and Maintenance Department of that commission. The accident report
1. In his first enumeration, appellant Bennett ascribes error to the trial court’s failure upon request to charge, in essence, that negligence on the part of one tortfeasor (i. e., Kuhlke) can be the proximate cause of injury to the plaintiff if the first tortfeasor (Kuhlke) might have reasonably anticipated that, as the result of the first tortfeasor’s having created a dangerous situation, the second tortfeasor (Augusta Aviation) would act negligently in conjunction to cause injury to the plaintiff. There is no merit in this enumeration. The trial court fully and adequately charged that either or both of the defendants could be found negligent, and fully charged on principles of joint -and comparative negligence, inherent in which is the principle urged by the appellant.
3. It was not error, as alleged in Bennett’s second enumeration, that the trial court refused to charge the last clear chance doctrine in relation to these parties. The charge did fully and adequately cover the duties of the respective defendants and principles of joint, comparative and contributory negligence. There was, moreover, no evidence authorizing a last clear chance charge. That principle has relation to the immediacy of the defendants’ anticipation of a plaintiff’s at least partly self-created danger, and not, as Bennett would suggest, to the mere reasonable anticipation that a dangerous situation exists coupled with the duty to correct it.
4. In Enumerations 4 and 5, appellant Bennett alleges it was error to refuse to charge that the plaintiff had the duty of ordinary care and not that degree of care which would absolutely have prevented the injury; and to refuse to charge that the plaintiff as an invitee of Augusta Aviation was not required to minutely inspect the premises. There is no merit in these enumerations. The trial court properly and fully instructed the jury that all three parties had the duty of ordinary care. Inasmuch as the jury did find that one of the defendants had abused its duty in this regard, the jury obviously did
Judgment affirmed.
070rehearing
On Motion for Rehearing.
The appellant complains of this court’s holding in Division 1 with regard to the trial court’s charge as it related to any liability of the appellee Kuhlke. These complaints are not well-founded since, error or not, the appellant is in no position to complain. The trial court did instruct the jury that either or both defendants could be found liable for negligence. The jury, apparently applying the principles of contributory negligence, found the dangerous condition of the ladder, by whomever caused, was responsible for only $5,000 of the appellant’s damages. In other words, only $5,000 in damages were found to be due to parties other than the appellant. Under these circumstances, the appellant cannot complain, for whatever reason, that one of the defendants was released, since the appellant would not have been entitled to a greater recovery in any case. See especially O’Quinn v. Douglas, A. & G. R. Co., 7 Ga. App. 309 (66 SE 810), where we held that “any error of law relating to the defendant’s liability was rendered harmless by the verdict [for the plaintiff], unless it was such as might have influenced the jury to reduce the amount that the plaintiff was entitled to recover.”
Appellant’s complaints concerning Division 2, 3, and 4 beg the questions which are clearly and adequately decided in the opinion and are, accordingly, without merit.
Rehearing denied.
Reference
- Full Case Name
- BENNETT v. KUHLKE AND ASSOCIATES, INC. Et Al.
- Cited By
- 6 cases
- Status
- Published