Conner v. Downs., 94 Ga. App. 482, 95 S.E.2d 393 (1956)
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A. M. Kelly, Erwin, Nix, Birchmore & Epting, Eugene A. Epting, contra.James R. Venable, Margaret Hopkins, for plaintiff in error.
1. The charges of the court in the language of Code (Ann. Supp.) 68-1634 and 68-1637 do not constitute reversible error on the ground that they were prejudicial to the plaintiff and not authorized by the evidence.
2. That a plaintiff is guilty of ordinary negligence will not bar recovery where it precedes any duty on his part to discover and avoid the negligence of the defendant, but it will bar recovery where it appears that it is the sole proximate cause of injury, or where by the exercise of ordinary care he might have avoided the defendant's negligence after it became apparent to him, or where by the exercise of such care he might have detected negligence on the part of the defendant which, had it been detected, could by ordinary care have been avoided. Negligence of the plaintiff not falling into one of these categories which concurs with negligence of the defendant in proximately causing the injury, but which does not equal or exceed the negligence of the defendant, goes in mitigation but not in bar of the recovery. The charge of the court on this subject was not subject to the assignments of error urged against it.
3. The verdict was authorized by the evidence and having the approval of the trial court will not be disturbed by this court.
Lloyd Conner, the husband of the plaintiff in this action, was struck and killed by the defendant's automobile while crossing the road in front of his house just after alighting from another automobile which had parked on the opposite side of the highway for the purpose of allowing him to alight, at approximately 8:30 p.m. in August, 1955. The plaintiff filed an action for damages in the Superior Court of Walton County, alleging as negligence against the defendant that he failed to control the speed of his vehicle so as to avoid colliding with the decedent, failed to keep his vehicle under control, failed to turn it so as to avoid hitting the decedent; failed to anticipate his presence on the roadway at a point where a vehicle with headlights burning was parked, and failed to apply his brakes in time to avoid striking and injuring the decedent. The jury returned a verdict for the defendant. The plaintiff assigns error here on the denying of her motion for a new trial as amended.
1. (a) Special ground 4 of the amended motion for a new trial complains of a charge of the trial court of Code (Ann. Supp.) 68-1634, that drivers of vehicles proceeding in opposite directions shall pass each other to the right, and, on 2-lane highways, each shall yield to the other at least one half of the road, on the ground that this charge was not adjusted to the evidence and issues involved, and was prejudicial in that it misled the jury into considering the defendant's conduct in the operation of his vehicle prior to striking the deceased, rather than his negligence at the moment of impact. The evidence shows that almost immediately before the moment of impact between the decedent and the defendant's automobile, at a distance of between 30 and 300 feet therefrom, the defendant met and passed the automobile from which the decedent had just alighted. The defendant was on his right side of the road at the moment of impact, and had to be on his right side of the road in passing the other vehicle. Applying the evidence to the charge, the jury would of course find that the position of the defendant's automobile was in conformity with legal requirements. If they inferred from certain testimony that the cars had passed each other not more than a car length or so from the point of impact, which they might have done, it is obvious that there was not time for the defendant to turn into the oncoming traffic lane after passing in an effort to avoid hitting the decedent. Thus, the charge was pertinent to one of the allegations of negligence charging the defendant with "failing to turn his said vehicle to the right or to the left so as to avoid striking petitioner's said husband, when there was no condition or obstacle present to prevent his so swerving." This ground is without merit.
(b) Special ground 5 assigns error on a charge in the language of Code (Ann. Supp.) 68-1657 as follows: "Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway: provided, however, that this section shall not apply to roadways in areas where there are no crosswalks nor intersections at which pedestrians may cross the roadway, but that on such roadways in such areas pedestrians crossing the roadway shall have equal rights with vehicles on the roadway," on the ground that, the pleadings of both sides admitting there was no crosswalk on the area in question, the charge should have been confined to areas without crosswalks and the first clause of this sentence should not have been charged. The charge did not, as contended, present for consideration the question of whether the decedent was under a duty to yield the right of way because of the existence of a marked or unmarked crosswalk at an intersection. Since there was no intersection and no crosswalk, the first clause did not apply and the remainder of the sentence did apply; the jury could not have been misled, in view of uncontradicted pleadings and evidence on this feature of the case, into applying a rule as to yielding the right of way which, in the absence of instruction, they might have done, but which the court specifically charged they should not do under circumstances corresponding to the undisputed evidence. Further: "It is not cause for a new trial that the court read in charge to the jury a Code section, part of which was applicable to the case and part not, where it does not appear that the reading of the inapplicable part was calculated to mislead the jury or was prejudicial to the rights of the losing party." Benton Rapid Express v. Sammons,
3. The evidence is, briefly, that the decedent and his 14-year-old son were driven on an errand by one Wages; that they returned after dark and Wages first intended to turn left and into the driveway of the decedent's home but, observing 2 cars approaching him some distance away he instead pulled off onto the shoulder of the road and stopped almost directly across from the driveway; that the son alighted, crossed the road in back of the car, walked a short distance up the driveway, and then turned around, just at the moment of impact; that the decedent alighted from the right side of the automobile, stood on the shoulder of the road near the right front fender for a brief moment speaking to the driver and the driver then pulled off, still before the cars whose lights he had noticed had reached the spot; that the driver started toward his own driveway which was up the road on the right some 300 or 400 feet, that he passed the defendant's car before he had shifted into second gear and gotten back on the highway (a distance from the point of impact which, from all the evidence, must have been approximately between 30 and 300 feet). Both automobiles, as well as a car following behind the defendant's car, had their lights on dimmed. The defendant was traveling between 35 and 50 miles an hour. He saw a figure (the decedent's son) cross the road. He passed the Wages car, saw the decedent in front of the car and hit him before having time to apply his brakes; thereafter the car was braked and left tire marks on the road for a distance of between 96 and 131 feet.
From this evidence the jury was authorized to find that the lights of the oncoming cars were visible to the plaintiff's husband even before he alighted from the automobile; that as this car pulled out toward the oncoming traffic he immediately started across the road in front of it; that the defendant was traveling at a proper rate of speed with his lights properly dimmed and that the decedent was so close behind the Wages car that, because of its bulk and its headlights, he could not be seen by the defendant until he stepped in front of him. A verdict for the defendant was authorized, although not required, by the evidence on the theory that under these circumstances he was not negligent in failing to see the decedent in time to avoid hitting him, or that if negligent, his negligence did not preponderate over the negligence of the plaintiff's decedent.
The trial court did not err in denying the motion for new trial as amended. The assignments of error in the bill of exceptions to the overruling of certain special demurrers of the plaintiff to the defendant's answer, not having been argued, are treated as abandoned.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.
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