Plaintiffs/appellants Rodney Sawyer, Delores Sawyer, Georgeanna Bozarth-Sawyer, Michael Sawyer and Raymond H. Massey hereinafter collectively referred to as plaintiffs were traveling on Interstate 85 near Newnan, Georgia when the car in which they were riding was struck by a tractor trailer rig driven by defendant/appellee Dan E. Crumpacker; the rig was owned Crumpacker’s employer, defendant/appellee Marjon Enterprises, Inc. hereinafter collectively referred to as defendants. Plaintiffs brought suit to recover damages for the injuries they allegedly incurred during the collision, and the case was ultimately tried before a jury, and a verdict was rendered in favor of the defendants. Plaintiffs filed a motion for new trial, which was denied, and then filed this appeal, asserting in two related enumerations of error, which we consider together, that the trial court erred in charging the jury on sudden emergency and that the trial court likewise erred in denying their motion for new trial in which they challenged the court’s instruction to the jury. As is pertinent here, the testimony at trial showed that the accident happened when Crumpacker lost control of his tractor trailer rig and collided with the Mercedes in which plaintiffs were riding. It had been raining prior to the accident, and at the time of the accident the rain was moderate to heavy. Because of the rain and wet roadway, the driver of the Mercedes testified he was going between 55 and 60 miles per hour; Crumpacker testified he was going between 50 to 55 miles per hour, although the speed limit on that part of the interstate was 70 miles per hour. Crumpacker further testified that the first thing he could recall about the collision was that he felt the drive axle of his vehicle break traction with the road and slip to the right, while the front of his vehicle moved unexpectedly to the left. The officer who investigated the accident, Lieutenant John LaChance, testified that Crumpacker told him that he had hydroplaned and lost control of his vehicle. LaChance further testified that “speed is the number one factor” that causes hydroplaning, and he noted in the accident report he prepared that Crumpacker had lost control of his vehicle “due . . . to hydroplaning from the speed.” However, on cross-examination he admitted that he did not say anything about speed in the accident report, and that the contributing factors he checked on the report were the weather and that the driver Crumpacker lost control. Nevertheless, he also testified that “speed is what caused him to hydroplane. You’re not going to hydroplane unless you have speed.”
Following the presentation of this evidence, the trial court charged the jury on sudden emergency as follows: “One who is confronted with a sudden emergency that was not created by one’s own fault and is without sufficient time to determine accurately and with certainty the best thing to be done, . . . is not held to the same accuracy of judgment as would be required of that person if he had had more time for deliberation.”
