Harris v. Cates, by Next Friend., 105 Ga. App. 178, 123 S.E.2d 703 (1961)
Linked as:
Text
Charles H. Hyatt, contra.B. Hugh Burgess, Edward E. Dorsey, C. B. Rogers, Powell, Goldstein, Fraser & Murphy, for plaintiff in error.
1, 2, 4, 5. The overruling of general grounds of a motion for new trial and of special grounds, discussed in the opinion, excepting to charges given by the court, was not error.
3. Refusal to give a pertinent charge which set out a correct statement of law was reversible error.
6. Ordinary care for his own safety requires a pedestrian upon entering any public street to look out in every direction from which traffic might approach and to ascertain that it is safe to enter the street, and while crossing the street to keep a reasonable lookout for vehicles depending on all the circumstances at the time and place. While the charge excepted to could have been more suitably worded, it was not inconsistent with the above statement and was not error.
1. The trial court did not err in overruling the motion for new trial on the general grounds. On some of the issues in this case the burden of proof was on the plaintiff, and on some it was on the defendant. The testimony of every party and witness who stated he or she saw what happened was attacked and weakened on cross-examination and by other means. The evidence on the important questions was in conflict. The brief of evidence shows that the plaintiff drew upon a blackboard at the trial a sketch of the intersection where the collision occurred. On many occasions, when testimony was elicited by use of this diagram and photographic exhibits, the witnesses stated where something was only by pointing or placing a piece of paper, indicating "here" or "there." Hence the record does not reveal the exact testimony on important, close questions in the case. This court has no opportunity to observe the parties' or witnesses' manner of testifying. There was evidence which if believed would authorize the verdict. In these circumstances, this court cannot substitute its judgment for that of the jury or for that of the trial judge in ruling on the general grounds of the motion for new trial. He-Po Gas Inc. v. Roath,
2. Special ground 1 complains that the court charged, "The driver of an automobile is bound to use reasonable care to anticipate the presence on the streets of other persons having equal rights with him to be there." The defendant contends that the charge "expressed, by implication, the opinion and instruction that the plaintiff had an equal right to be upon the street as had the defendant," and "this compelled the conclusion that the plaintiff was not negligent or that (if the plaintiff was negligent) the defendant was also negligent." In O'Dowd v. Newnham,
6. Ground 5 complains of the following charge given by the court, and ground 6 complains of a part of it: "And a pedestrian lawfully using the public highway is not bound to be continually looking and ascertaining if auto cars are approaching under the penalty that if he fails to do so and is injured it must be conclusively presumed he is negligent." The defendant contends that the charge "misled the jury into believing that the plaintiff-pedestrian could not, under such circumstances, be found to be negligent as a matter of law"; that it harmed the defendant because there was evidence from which the jury could have found the plaintiff's own negligence in failing to look and ascertain whether cars were approaching caused her injuries; and that the charge influenced the jury to resolve the issue of plaintiff's negligence against the defendant. What the charge says is that a pedestrian's failure to be continually looking for automobiles is not necessarily negligence. Quick Tire Service v. Ball,
Certainly today ordinary care for his own safety requires a pedestrian upon entering any public street to look out in every direction from which traffic might approach and to ascertain that it is safe to enter the street. Having done this, he is under the further duty, "while crossing or walking or standing in the roadway, to keep a reasonable lookout for passing vehicles, in order to avoid injury therefrom; and the failure to do so may constitute negligence . . . although it will not necessarily do so under all circumstances." 25 Am. Jur. 524, 228. What is "a reasonable lookout" depends on all the circumstances at the time and place. The particular language of the charge here in question does not contradict the above statements. A pedestrian is not bound at his peril on every occasion and at all times to be "continually looking" for cars. "Continually" means "continuously (in time); without intermission." Webster's New International Dictionary of the English Language (2d Ed., 1961, unabridged). To require a pedestrian to give complete attention to looking for the appearance or onrushing of cars, that were not in view or were at a safe distance when he entered the street with reasonable care, would be inconsistent with the pedestrian's duty to exercise reasonable care in all respects. We do feel, however, that jury charges in terms of what a person is required to do, rather than what he is not required to do, should generally be preferred, in the absence of special circumstances indicating the contrary.
These grounds show no error or prejudice as claimed by the defendant.
Judgment reversed. Felton, C. J., and Bell, J., concur.
1961
Sponsored links
This document cites
- Supreme Court of Georgia - SUMMER, by guardian, v. BOYD., 208 Ga. 207, 66 S.E.2.d 51 (1951)
- Supreme Court of Georgia - ADLER et al., executors, v. ADLER., 207 Ga. 394, 61 S.E.2.d 824 (1950)
- Georgia Court Of Appeals - He-Po Gas Incorporated v. Roath., 87 Ga. App. 827, 75 S.E.2d 451 (1953)
See other documents that cite the same legislation
