The court instructed the jury: “The burden of proof is on the plaintiff, Mr. Whitehead; and in order for him to obtain a verdict in his favor by you the burden is on him to prove by a preponderance of the evidence not only that the defendants were negligent in one or more of the ways set forth in the plaintiff’s petition but also that such negligence by the defendants was the proximate cause of his damage, if any.” He then stated: “In addition to the foregoing, the burden is also on the plaintiff to prove by a preponderance of the evidence that he could not have avoided the damage caused by the
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defendants’ negligence, if any, by the exercise of ordinary care on his part. In other words, before the plaintiff would be entitled to a verdict in his favor in this case, the burden is on him to prove by a preponderance of the evidence at least three things: first, that the defendants were negligent of at least one of the acts of negligence set forth in his petition; second, that such negligence by the defendants was the proximate cause of his damage, if any, and, third, that he could not have avoided such damage by the exercise of ordinary care on his part.” The instruction was error because proof of ordinary care on the part of the plaintiff in discovering and avoiding the negligence of the defendant is no part of the plaintiff’s case in chief. “It is insisted, however, that the plaintiff’s husband, by the exercise of ordinary care and diligence upon his own part, could have avoided the consequences of the defendant’s negligence, and for that reason the plaintiff could not recover. The burden of proof rests upon the defendant to establish this defense. Civil Code § 5160 [now
Code
§ 38-103];
Falkner v. Behr, 75
Ga. 671;
City Council of Augusta v. Hudson,
Interrogatories and depositions, being in lieu of testimony, should not be taken into the jury room.
Shedden v. Stiles,
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3. Where, as here, the defendants pleaded accident as one of their theories of defense, and the plaintiff’s testimony was to the effect that his vehicle was in the middle of the freeway due to the unforeseen event of the windshield fogging up so that he could not see, and the evidence as a whole does not demand the finding that except for the negligence of some human agency the collision would not have occurred, it was proper to charge on this subject.
Cobb v. Big Apple Supermarket of Columbus,
4. While there was testimony in this case from which a jury might have found that the plaintiff was injured due to a sudden emergency caused by forces over which he had no control, there was also evidence authorizing a verdict for the defendant on the ground that the plaintiff, when he found he could not see through his front windshield, might have taken immediate steps, by rolling down the window on his side of the vehicle, to avoid steering it into the center of the roadway and there coming to a stop, endangering not only himself but also following traffic. Assumption of risk, however, insofar as it applies to tort cases at all, goes beyond this and assumes that the actor, without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not. “It is the situation in which one voluntarily takes the risk of a danger which is so obvious that he knows or must know of it, as in trying to beat a rapidly approaching train across the track, or in accompanying one who he knows is about to engage in a drag race, or in walking out onto a frozen pond where the ice is thin, etc.”
Yandle v. Alexander,
5, 6. The remaining headnotes need no further elaboration. The seventh enumeration of error is not passed upon since the case will be tried again and the name of the witness referred *29 to in this excerpt from the charge can be ascertained in the meantime if plaintiff so desires and if it is in the possession of the defendant.
Judgment reversed.