This is the second appearance in this court of this convoluted case involving a collision in March, 1973, between an automobile driven by Brooks and a John Deere tractor being driven by Douglas, manufactured by Deere & Company and owned by McNair. See in this connection
Brooks v. Douglas,
The case came on for trial before a jury which returned a verdict in favor of both defendants. The judgment followed the verdict, and the plaintiff appeals. Held:
1. The first enumeration of error is that the trial court erred in charging the jury on the principle of the assumption of the risk with reference to Count 2 of the complaint which sounds in strict liability. The charge was that “[w]hen a person knowingly and voluntarily takes a risk of physical injury, the danger of which is so obvious that *225 the act of taking such a risk, in and of itself, amounts to a failure to exercise ordinary care and diligence for his own safety, he cannot hold another liable for injuries proximately caused by such action even though the injuries may be in part attributable to the negligence of such other person.” The court likewise instructed the jury that this principle of assumption of risk applied in both counts. Count 1 was brought jointly and severally against the manufacturer and the driver for negligence, the driver for negligent operation of the tractor at night and the manufacturer with reference to the patently defective and negligently installed rear lights and “ASAE S 276.1 slow moving vehicle emblem” installed on the tractor. Count 2 was brought solely against the manufacturer based upon products liability, also known as strict liability. While we have our doubts that this charge applies at all to this case, nevertheless, this issue is not before us. We, therefore, proceed to consideration of this charge based on the objection made.
The plaintiff argues that the assumption of the risk principle in strict liability and common law negligence cases are two different and distinct principles of law as applied to common law negligence and the objective reasonable man standard of what a person knows or should know under the circumstances before a person can assume the risk. When the danger becomes so obvious to a reasonable man and the likelihood of injury becomes so apparent then a reasonably prudent man assumes the risk. Thus, the plaintiff in a negligence action may assume the risk when he knows of or as a reasonably prudent man should be aware of the danger and voluntarily encounters such a danger. A plaintiff either actually or constructively becomes aware of the danger, appreciated the danger, and then voluntarily chose to risk such danger, if he assumed the risk. However, in a strict liability case such as the case sub judice, the plaintiff is not required to discover and avoid the product defect. In product liability cases in order for it to apply it must be shown that he had actual knowledge of the defect and danger and that he used the product unreasonably. See in this connection
Ford Motor Co. v. Lee,
The defendant manufacturer argues that the basis for the plaintiffs exception to the charge on assumption of risk was that it did not apply
at all in
a strict liability case and now seeks to argue that it did not apply where plaintiff had no actual knowledge of the
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elements set forth as found in
Ford Motor Co. v. Lee,
In the case sub judice there was absolutely no evidence in the case that the plaintiff had any knowledge of any defect until after the
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collision or that he could have any knowledge of any defect in a sudden two vehicle collision between complete strangers. His evidence was that he was blinded by the lighting system, whereas the defense was that the plaintiffs negligence was greater than that of the defendant, if any. Accordingly, the court’s charge was erroneous and cannot be held to be harmless error since part of plaintiff’s case (Count 2) was based on the issue of strict liability. See
Ford Motor Co. v. Lee,
2. The second enumeration of error is that the trial court erred in admitting into evidence three photographs of the tractor in question admittedly taken at a different time under different conditions in a different setting. However, a proper foundation was laid for admission of these three photographs which were properly identified and were admissible in the discretion of the court. The court likewise gave a cautionary charge with reference thereto. See
Carnes v. State,
3. Another enumeration of error is that the trial court erred in charging the jury that if they found that the field lights on the tractor were not being used at the time of the collision, then the plaintiff would not be entitled to recover under any theory, thereby eliminating the issue of strict liability from the jury’s consideration. Plaintiff contends that the evidence was undisputed in this case that the tractor in question was manufactured by the defendant manufacturer and the height of the rear lighting system as well as the slow moving vehicle emblem were in violation of the Georgia statutes; that same created a deceptive illusion as well as made the slow moving vehicle emblem and taillights not effective because of the higher than usual legal position.
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The trial court did not err in giving this charge with reference to whether or not the field lights on the tractor were activated at the time of the collision. The time that the collision occurred was at dusk, near dark or after dark, and it was a question for the jury as to whether the lights were on at the time of the collision. The court had already charged adequately as to the slow moving vehicle emblem, and we cannot say that this charge eliminated the question of strict liability as to the location of the slow moving vehicle emblem. But the court’s charge also had reference to the fact that if the jury found the field lights on the tractor “were not being used as they were intended to be used, that is for lighting fields at night, but were used on a highway for which they were not intended to be used, then the Plaintiff cannot recover of Deere and Company in this case.” The charge is therefore subject to the objection and argument that it eliminated the question of strict liability as to the use of the taillights, for plaintiffs entire case sought to establish that he was blinded by the lights which had created a deceptive illusion. Again we add as in Division 1, the plaintiff in a strict liability case such as here has no duty to discover the defect or protect himself from an unknown danger in the exercise of ordinary care. One is barred from recovery only if the defect is discovered and he is aware of the danger but nevertheless proceeds to make unreasonable use of the product. See
Center Chemical Co. v. Parzini,
4. Plaintiff specifically requested in writing a charge that negligence is not a defense to strict liability and that the plaintiffs failure to discover the defect or to guard against the possible existence of a defect would be no defense for the defendant manufacturer. This charge was a correct principle of law as applies to a product liability case such as here and was involved as to Count 2 of this suit. The court was required to charge this request in connection with its charge to the jury on the definition of strict liability and proximate cause as to the defect. See
Parzini v. Center Chemical Co.,
The defendant manufacturer contends that the trial court
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amply covered this charge in its general charge on strict liability, particularly in that the court charged that there was a contention in Count 2 that the tractor involved was defectively designed and manufactured without reference to any negligence or its negligent operation at the time of the collision in question and without responsibility of proving negligence insofar as this count is concerned. The charge as requested was in fact covered by the general charge of the court. It was not necessary to give the charge in the exact language requested inasmuch as the charge as given substantially covered the same principle. See
Pollard v. State,
5. In the next enumeration of error plaintiff contends the trial court erred in failing to give three specific requests to charge. However, when counsel was given a suitable opportunity to make his objections under Code Ann. § 70-207 (a) (Ga. L. 1965, pp. 18,31; 1966, pp. 493,498; 1968, pp. 1072,1078), one of these requests was not even referred to when counsel stated that he was excepting to the court’s failure to give plaintiffs written requests contending same were “accurate statements of law and adjusted to the facts in this case.” This was not a suitable exception. Counsel must state distinctly the matter to which he objects and the grounds of his objection. We decline to consider this objection as counsel failed to refer to this written request when given the opportunity to object to the charge by the trial court at the proper time. The written request involving foreseeability as to the use of the product (tractor) is somewhat argumentative being more favorable toward the plaintiff. It also appears that the trial court, in substance, covered this charge. Assuming arguendo that a sufficient exception was made in the trial court we find no merit in this complaint. Further, upon the failure to argue by brief an enumeration of error, it will be deemed to have been abandoned by this court.
Brown v. Quarles,
The basis for the reversal here is only concerned with the defendant manufacturer and has to do with the confusing charge by the court on assumption of risk as to the question of strict liability. It is true this defendant was jointly and severally sued with the defendant driver with reference to common law negligence in Count 1 and as to strict liability or product liability as to Count 2. Under the circumstances we find no reversible error with reference to the defendant driver of the vehicle. Accordingly, the case is reversed as to *230 the defendant manufacturer but affirmed as to the defendant driver.
Judgment affirmed in part and reversed in part.