O.C.G.A. § 40-6-93 (2019)

Annotations

JUDICIAL DECISIONS Ordinary care required. - Legal requisite of a motorist as to parties on the street or highway, whether in other vehicles or as pedestrians, and whether a child or adult, is the exercise of ordinary care. Reed v. Dixon, 153 Ga. App. 604, 266 S.E.2d 286 (1980). One lying prone in the highway in a drunken condition is owed a duty of care if one is lying in the open on a flat road, even though undiscovered. A driver in such a situation is under a duty to discover the victim’s peril and avoid injury to that person. Fountain v. Thompson, 252 Ga. 256, 312 S.E.2d 788 (1984). Applicability. - Provisions of O.C.G.A. § 40-6-93 do not purport to apply to duties owed to other drivers, but focuses on duties owed to persons on the highway; the statute had no applicability to a case against a motorist brought by a motorcyclist who claimed that the motorist failed to avoid a collision once the motorist ascertained that the motorcyclist was not in control of the vehicle. McKissick v. Giroux, 272 Ga. App. 499, 612 S.E.2d 827 (2005). Applicability to bicyclists. - Courts have applied the provisions of Ga. L. 1953, Nov.-Dec. Sess, p. 556 (see now O.C.G.A. § 40-6-93) to bicyclists. Howard v. Hall, 112 Ga. App. 247, 145 S.E.2d 70 (1965). Jury charge upheld. - Charge to the jury under Ga. L. 1953, Nov.-Dec. Sess., p. 556 (see now O.C.G.A. § 40-6-93), that ‘‘every driver of a vehicle shall exercise

due care to avoid colliding with any pedestrian upon any roadway,’’ etc., which added thereafter the phrase ‘‘or such other user of any roadway,’’ which was not contained in that section, was not error especially since the language imposed no greater duty on the defendant than does the common law. Hughes v. Brown, 111 Ga. App. 676, 143 S.E.2d 30 (1965). Trial court did not err in charging the jury on O.C.G.A. § 40-6-93 as the court included limiting instructions. As part of the court’s instructions, the trial court read the accusation, defined the charged crimes, explained that the state bore the burden of proving the material elements of those offenses, and told the jury that the jury could find the defendant guilty only if the jury determined beyond a reasonable doubt that the defendant committed the offenses as alleged in the accusation. Hughes v. State, 290 Ga. App. 475, 659 S.E.2d 844 (2008). No merger into vehicular homicide. - Defendant’s reckless driving, running a red light, and less safe driving under the influence convictions merged into the defendant’s reckless vehicular homicide convictions, which involved two deaths resulting from the defendant’s striking a car; however, the failure to exercise due care conviction involving the defendant’s striking a pedestrian did not merge into the vehicular homicide conviction as the acts leading to the two charges involved different facts and different victims. Hill v.

State, 285 Ga. App. 503, 646 S.E.2d 718 (2007). Merger required remand for resentencing. - Because the defendant’s misdemeanor sentence, based on the failure to exercise due care, was also based in part on convictions that merged with the reckless vehicular homicide counts, and because the trial court never vacated the

defendant’s convictions for the misdemeanor counts charged, the relevant portions of the defendant’s sentence were vacated and the case was remanded for resentencing. Hill v. State, 285 Ga. App. 503, 646 S.E.2d 718 (2007). Cited in Johnson v. Ellis, 179 Ga. App. 343, 346 S.E.2d 119 (1986).

RESEARCH REFERENCES Am. Jur. 2d. - 8 Am. Jur. 2d, Automobiles and Highway Traffic, §§ 411, 418, 422, 936. Am. Jur. Proof of Facts. - Last Clear Chance, 32 POF2d 625. C.J.S. - 60A C.J.S., Motor Vehicles, § 891. ALR. - Injury by road vehicle to person on sidewalk, 1 A.L.R. 840; 75 A.L.R. 559. Right or duty to turn in violation of law of road to avoid traveler, or obstacle, 24 A.L.R. 1304; 63 A.L.R. 277; 113 A.L.R. 1328. Liability for injury to pedestrian colliding with side of automobile, 25 A.L.R. 1513. Right of way at street or highway intersections, 37 A.L.R. 493; 47 A.L.R. 595. Duty of pedestrian before crossing street to look for vehicles approaching on intersecting street, 44 A.L.R. 1299. Liability for injury by automobile to child playing ball in the street, 44 A.L.R. 1304. Liability for injury on park strip between sidewalk and curb, 59 A.L.R. 387; 61 A.L.R. 267; 19 A.L.R.2d 1053. Liability for injury to pedestrian struck by automobile as affected by his blindness, deafness, or other physical disability, 62 A.L.R. 578. Liability for injury to pedestrian struck by automobile while walking along street or highway, 67 A.L.R. 96; 93 A.L.R. 551. Duty and liability to person struck by automobile while crossing street at unusual place or diagonally, 67 A.L.R. 313. Liability of owner or operator of motor vehicle for injury to person who has alighted from or is waiting for streetcar or bus, 123 A.L.R. 791. Intoxication of person injured or killed

as affecting applicability of last clear chance doctrine, 26 A.L.R.2d 308. Duty of motor vehicle driver approaching place where children are playing or gathered, 30 A.L.R.2d 5. Application of ‘‘assured clear distance ahead’’ or ‘‘radius of lights’’ doctrine to accident involving pedestrian crossing street or highway, 31 A.L.R.2d 1424. Liability for motor vehicle accident where vision of driver is obscured by smoke, dust, atmospheric condition, or unclean windshield, 42 A.L.R.2d 13; 32 A.L.R.4th 933. Rights of injured guest as affected by obscured vision from vehicle in which he was riding, 42 A.L.R.2d 350; 32 A.L.R.4th 933. Instructions on sudden emergency in motor vehicle cases, 80 A.L.R.2d 5. Motorist’s liability for injury to one in or about a street or highway for the purpose of directing or warning traffic, 98 A.L.R.2d 1169. Liability for collision of automobile with pedestrian at intersection as affected by reliance upon or disregard of traffic sign or signal other than stop-and-go signal, 3 A.L.R.3d 557. Liability of motorist colliding with person engaged about stalled or disabled vehicle on or near highway, 27 A.L.R.3d 12. Automobiles: sudden emergency as exception to rule requiring motorist to maintain ability to stop within assured clear distance ahead, 75 A.L.R.3d 327. Liability, in motor vehicle-related cases, of governmental entity for injury or death resulting from defect or obstruction on roadside parkway or parking strip, 98 A.L.R.3d 439. Motor vehicle operator’s liability for accident occurring while driving with vision

obscured by smoke or steam, 32 A.L.R.4th 933. Sufficiency of evidence to raise last clear

chance doctrine in case of automobile collision with pedestrian or bicyclist - modern cases, 9 A.L.R.5th 826.