Vernon W. Duncan, Conley Ingram, Russell Ford, Sr., contra.Powell, Goldstein, Frazer & Murphy, Frank Love, Jr., Ben Smith, for plaintiff in error.

1. Although the plaintiff in this personal injury action alleged acts committed by the defendant driver which he denominated gross negligence, under prior rulings of this court he was entitled to recover upon proof of such acts and proof that they constituted ordinary negligence. An allegation that the defendant "allowed" his foot to slip from the brake to the gas pedal, while importing conscious knowledge by the defendant of the act, did not require the plaintiff to prove that it was done intentionally or with any motive of injuring the plaintiff.

2. Allegations of negligence in a petition which have been stricken on demurrer should not be presented to the jury for their consideration in determining the fault, if any, of the defendant.

3. It is error, after instructing the jury that the plaintiff may recover for loss of future earnings reduced to present cash value, and may also recover for diminution of his capacity to work and labor as an element of pain and suffering, to state that on the latter question the jury may consider lost future earnings, since this allows the plaintiff a double recovery for a single item of damage.

4. Where the evidence is in conflict as to the permanency of the plaintiff's injuries, and the jury is instructed as to the use of mortality tables admitted in evidence, they should be clearly informed that the mortality tables are not to be considered in the event the injury sustained is found to be of a temporary nature only.

Joe Wright filed an action for damages against Richard Lail in the Superior Court of Cobb County alleging that, while he was a guest in the defendant's home, the defendant requested him to ride back and forth in his automobile in his driveway to help the defendant determine the location of a rattle in the car. The plaintiff sat in the front seat, and after some "backing and filling" during which the men could not locate the rattle, the defendant stopped the car and the plaintiff opened the right door and started to leave. While still seated but with his feet on the ground he was thrown from the car when the defendant allowed his foot to slip off the brake and onto the gas pedal, lurching the vehicle forward, and then jammed on the brakes, which action knocked the plaintiff out on the driveway and caused him severe physical injuries, including a broken hip. Demurrers to the petition were sustained in the trial court and that judgment was reversed in part on the first appearance of the case here. Wright v. Lail, 105 Ga. App. 261 (124 SE2d 487). Subsequently the case went to trial and resulted in a verdict for the plaintiff. The defendant filed motions for a new trial and for judgment notwithstanding the verdict, the overruling of which is assigned as error.

1. When this case was here before the issue was raised by demurrer as to whether actionable negligence was charged in statements that the defendant "allowed" his foot to slip from the brake onto the gas pedal, lurching the car forward and throwing the plaintiff to the ground where he sustained a broken hip and other physical injuries. The court stated that the language imported conscious knowledge on the part of the defendant whereby he let his foot slip onto the accelerator, and that whether in fact the injury resulted from accident or from the failure of the defendant to exercise ordinary care was a jury question. Upon trial the fact that the injury occurred in the manner described was undisputed, and, as to why it occurred, the defendant could only say that his foot slipped off the brake and hit the gas throttle and pushed it open. He characterized this action on his part as inadvertent and accidental, from which the natural inference is that the defendant did not intend to put the car in motion and did not intend to throw the plaintiff from the vehicle and thereby injure him. "The word 'accident' as applied to personal-injury cases often has a lay meaning as referring to any unintentional act, whereas it has a legal meaning as referring to an injury which occurs without being caused by the negligence of either the plaintiff or file defendant." Bush v. Skelton, 91 Ga. App. 83 (1a) (84 SE2d 835). The motion for judgment notwithstanding the verdict, as well as the motion for a new trial on the general grounds, is based on the premises that the evidence does not show the defendant moved his foot with that "conscious knowledge" which the court said the language of the petition embraced, and as a result it is contented that there is no evidence to support the verdict as rendered. Such a construction of the language of the court is untenable because the same sentence states that the issue is whether the defendant exercised ordinary care--in other words, the issue is ordinary negligence, whereas a construction of the language necessary to reach the conclusion urged by the defendant would import conscious intent, which would be wilful and wanton negligence. In the same manner, the evidence of the defendant to the effect that his foot slipped off the brake "accidentally" does not mean that this happened without any responsibility on his part (a question for the jury and not the defendant to decide) but rather that it happened without any intent on his part to move the car forward and injure the plaintiff. Nothing in the language of the first opinion in this case requires the plaintiff to show more than lack of ordinary care, which the undisputed facts amply reveal. The trial court properly overruled the motion for judgment notwithstanding the verdict.

2. The petition charged the defendant with "(a) failing to keep his Plymouth automobile under proper control at all times, same constituting gross negligence," and "(b) failing to exercise due care for the safety of your plaintiff, which constitutes gross negligence," and also charged gross negligence (c) in allowing his foot to slip off the brake, (d) in allowing his foot to hit the gag pedal while plaintiff was removing himself from the car, (e) injuring the plaintiff in the manner alleged, and (f) failing to observe the plaintiff attempting to get out of the automobile. On the prior appeal, Wright v. Lail, 105 Ga. App. 261 (124 SE2d 487), the court held that although under the facts alleged it was not necessary for the plaintiff to allege and prove gross negligence rather than ordinary negligence, nevertheless "we must rule upon the specific points raised by the demurrer"; that accordingly, subgrounds (c), (d) and (f) sufficiently charged gross negligence and it was error to sustain demurrers to them, but subgrounds (a) and (b) constituted "no more than a charge of a failure to exercise ordinary care," for which reason demurrers to these specifications of negligence were properly sustained.

When the court charged the jury at the conclusion of this case he treated subgrounds (a) and (b) as remaining in the case, read them to the jury with other allegations of the petition, instructed that the plaintiff would have a right to recover if he proved "the defendant was negligent in some one or more or in all of the respects and particulars named in the plaintiff's pleadings" and failed to instruct that sustaining special demurrers to subgrounds (a) and (b) deleted these allegations of negligence from the case. To this extent the charge was erroneous, and the rule is unquestioned both that a judgment sustaining a special demurrer to an allegation of negligence is an adjudication that it constitutes no legal basis for recovery, and also that this is a material issue as to which an erroneous charge is not rendered harmless by a subsequent statement of the correct principle unless the court expressly calls attention to and retracts the incorrect statement. Executive Com. of Baptist Convention v. Ferguson, 213 Ga. 441 (1) (99 SE2d 150). This case differs from Ferguson, and also from the cited cases of Atlantic C. L. R. Co. v. Godard, 211 Ga. 373 (86 SE2d 311) and Central of Ga. R. Co. v. Keating, 102 Ga. App. 414, 421 (116 SE2d 529); Western &c. R. Co. v. Smith, 145 Ga. 276 (6) (88 SE 983). An inference that the injury suffered by this plaintiff was permanent was clearly authorized by testimony showing that, two years after the event, he suffered continued physical pain and disability. Southern R. Co. v. Clariday, 124 Ga. 958 (53 SE 461); Southern R. Co. v. Hill, 125 Ga. 354 (54 SE 113). There was in addition uncontradicted testimony by a physician that there was a 15% permanent physical disability. Whether the evidence demanded a finding that the injury was permanent, which would have rendered such instruction unnecessary, need not be decided since the case is to be tried again.

The trial court did not err in overruling the motion for judgment notwithstanding the verdict, but erred in overruling the motion for a new trial.

Judgment affirmed in part; reversed in part. Felton, C. J., and Eberhardt, J., concur.

1963