ELDER v. SMITH, by Next Friend, et al., 121 Ga. App. 461

Evans, Judge. The purpose of the

summary judgment is not to by-pass a jury trial but to eliminate the necessity therefor when there is no genuine issue of fact, and the moving party is entitled to a judgment as a matter of law. Holland v. Sanfax Corp., 106 Ga. App. 1 (126 SE2d 442); Caldwell v. Gregory, 120 Ga. App. 536 (171 SE2d 671); Connors v. City Council of Augusta, 120 Ga. App. 499 (171 SE2d 578). It enables the trial judge to filter out the sham issues in order to avoid needless and time-consuming litigation. But any doubt as to the existence of an issue is resolved against the movant.

Thus we must examine the evidence in this light to determine if the movant-appellant carried the burden of removing doubt as to the existence of a jury issue in this case. Examination of the defendant’s testimony by deposition discloses that the defendant in “jacking up” the vehicle was aware that it was doing some slipping, and while the plaintiff was under the automobile, the jack slipped, and the automobile fell on the plaintiff.

It is argued that the plaintiff had knowledge that the jack was slipping, and even if the defendant failed to warn the plaintiff, the plaintiff having such knowledge, assumed an obviously dangerous position in reference thereto, and cannot complain of the failure of the defendant to warn him.

It is true that the defendant testified that they both knew the jack was slipping or skipping and he told the plaintiff to get out from under the car; that he knew the jack was defective for the purpose for which they were using it, and he was not touching the jack when it “stripped loose,” causing the car to fall on the plaintiff.

But the plaintiff testified on deposition that he did not examine the jack at all; that the defendant had told him that the defendant’s father, another defendant, had wanted the son to work on the automobile of the uncle (the third defendant); that plaintiff offered to assist the defendant since he (the defendant) was not repairing the automobile properly; that it was “jacked up” by the defendant; that plaintiff did not know that the jack was “no good.” The deposition of the defendant was that he did not ask the plaintiff to help him but a subsequent question and answer show that he asked the plaintiff “to show me what had to be done, because he said I was doing it all wrong”; that plaintiff obtained a wrench from another locality to assist him, and that they worked together to repair the car; that the jack did not appear defective in any way but that it was defective for the use to which it was put and “any other time it wasn’t.” Defendant started “jacking it” down when he saw the jack was slipping ■with the plaintiff under the car, and he was back of the car when the car fell, but that he wasn’t touching it when the car fell; that he knew the jack was “skipping” and he told the plaintiff to get out from under the car.

In the answer to one question the plaintiff may have known the jack slipped at least once. The question: “It slipped a little bit that time, didn’t it?” Answer: “Yes, sir.” Yet, a close scrutiny of these cross examination questions and answers shows many questions about slipping, and it appears that the witness is speaking of a lug wrench or a spring slipping; yet none of this testimony is sufficient to conclusively show he had knowledge of the defective jack which caused the car to fall on him. It was still a jury question.

The deposition of the plaintiff’s mother was that, when she arrived at the hospital after the car fell on her son, the defendant was present, and was crying: “Oh, my God, it’s my fault,” and that he said this a number of times. It is noted that the plaintiff testified that the defendant was at the jack and operating it at the time it fell, and that he did not say anything to him at all; that the jack was not going up at the time the jack fell.

He was not asked specifically whether the defendant told him to get out from under the car because the jack was slipping, but from the questions and answers in the deposition it shows the plaintiff’s testimony is contradictory of the defendant’s, as to how the alleged injury occurred. Examination of the depositions clearly shows that the defendant admits knowledge of the defective jack, but claims the plaintiff knew of such defect in the jack and thus assumed an obviously dangerous position in reference thereto.

The defendant claims he advised the plaintiff that the jack was slipping and to get out from under the car. Examination of the plaintiff’s testimony shows he testified that no such warning was given. But above all, the defendant’s admission against his interest at the hospital to the mother of the plaintiff makes an issue for determination by a jury as to whether or not a claim exists. In Central of Ga. R. Co. v.

Mosely, 112 Ga. 914 (3) (38 SE 350) the Supreme Court held that the court erred in refusing to admit evidence by the defendant that the plaintiff had “admitted ‘that the injury was caused by his own fault, and that nobody was at fault but himself.’ ” This evidence, the court said, created an issue for the jury to decide. Similarly, see Wade v. Drinkard, 76 Ga. App. 159 (5) (45 SE2d 231); Rentz v. Collins, 51 Ga. App. 782 (2) (181 SE 678); Hobbs v. New England Ins. Co., 212 Ga. 513, 519 (93 SE2d 653) and citations at page 520. Of course, the rule of law is that such admissions shall be scanned with care.

Code § 38-420. But. whose duty is it to do this? A jury alone. Phoenix Ins. Co. v. Gray, 113 Ga. 424 (2) (38 SE 992); Smith v. Page, 72 Ga., 539, 544; Burk v. Hill, 119 Ga. 38 (45 SE 732); Wootten v. Braswell, 48 Ga. App. 312 (2) (172 SE 679). From examination of the testimony, neither the alleged negligent acts of the plaintiff nor of the defendant are so plain,. palpable and undisputable that a trial court could declare their conduct to be negligent as a matter of law on motion for

summary judgment. There is a question for the jury as to whether the plaintiff exposed himself to a foreseeable unreasonable risk of harm. To say this question even exists as to the plaintiff’s negligence, of necessity imputes that the defendant created a foreseeable unreasonable risk of harm to the plaintiff. All of these questions should be resolved by a trial in the ordinary manner rather than by

summary adjudication, and the trial court correctly overruled the defendant’s motion for

summary judgment. Judgment affirmed. Bell, C. J., Hall, P. J., Deen, Qwillian and Whitman, JJ., concur. Jordan, P. J., Eberhardt and Pannell, JJ., dissent.