Richardson v. Coker , 78 Ga. App. 209 ( 1948 )

The court erred in giving in charge to the jury the excerpt shown in division one of this opinion.

There is no merit in any of the other grounds of the amended motion which are passed on.

DECIDED DECEMBER 3, 1948. Mrs. William Richardson sued W. E. Coker and West View Corporation, his employer, to recover damages for personal injuries alleged to have been caused by the negligence of Coker in the performance of his duties as employee of the corporation. The petition alleged: that the plaintiff was driving a Dodge sedan automobile in a southerly direction on Barnett Street from Drewry Street toward St. Charles Avenue, in Atlanta, Georgia, on her way to Bass High School; that Barnett Street was a boulevard on St. Charles Avenue, and there was a boulevard stop sign for traffic approaching on each side of Barnett Street at St. Charles Avenue; that the plaintiff reduced her speed to about eight miles per hour as she reached the intersection of St. Charles Avenue and Barnett Street and looked in all directions and blew her horn before proceeding into and across the intersection; that she saw that there was no traffic approaching from any direction at or near the intersection, and started across it at a rate of speed about eight or ten miles per hour; that when she reached a point about the middle of the intersection an automobile operated by W. E. Coker appeared on her right at a very rapid rate of speed of approximately fifty miles an hour and at a distance of one hundred to one hundred fifty feet west of Barnett Street on St. Charles Avenue, headed east directly toward the plaintiff; that there was a large and conspicuous boulevard stop sign on the south side of St. Charles Avenue and several feet west of Barnett Street in front of the driver of the rapidly approaching automobile, on his right side and between him and the plaintiff; that the defendant Coker ran over the boulevard stop sign without stopping and at said rapid rate of speed and into the right rear of the automobile driven by the plaintiff, knocking the same over on its top on the east sidewalk and pavement of Barnett Street, a distance of approximately thirty feet from the southeast corner of Barnett Street and St. Charles Avenue, severely injuring the plaintiff; that the defendants were negligent in the following particulars: "In that the said W. E. Coker was operating the defendant's automobile at a very rapid, reckless and illegal rate of speed of approximately 50 miles per hour as he approached the boulevard stop sign on St. Charles Avenue at Barnett Street in the direction in which he was going, without looking where he was going, without observing the presence of the plaintiff, without having his car under control, without blowing his horn or giving her any warning whatever of his headlong and reckless approach, failure to stop his car without striking her, and in not going around her without hitting her, and in running over said boulevard stop sign at said rapid and reckless rate of speed, and thus violating the following valid and existing ordinances of the City of Atlanta in force and effect at said time and place." Among the ordinances pleaded were one limiting speed to 25 miles per hour, one making it unlawful to disobey traffic signs, one requiring vehicles to stop before crossing a "through street," and one requiring the operator of a vehicle approaching an intersection to yield the right of way to a vehicle which has just entered the intersection.

The defendants denied the material allegations of the petition, and by amendment alleged that the plaintiff's injuries were due to her own negligence, in (a) driving at a speed greater than 25 miles per hour while driving through an intersection, (b) in failing to reduce speed before entering the intersection, (c) in failing to stop her car before striking the car of the defendants, and (d) in failing to turn her car so as to avoid striking the car of the defendants; and pleaded sections 88-708 (e) and 88-703 of the ordinances of the City of Atlanta, and Code § 68-303; and alleged that each and every act above was the sole proximate cause of the injury, and that the negligence of the plaintiff was equal to or greater than any negligence of the defendants. The jury found for the plaintiff in the sum of $800, and she excepts to the overruling of her motion for a new trial as amended.

Mrs. Richardson, plaintiff, with reference to the facts of the collision, testified in part as follows: "I went from Virginia Avenue to St. Charles Avenue on Barnett Street. I was going twenty-five miles an hour as I approached the intersection of St. Charles Avenue on Barnett Street; I know I didn't go over that before I got in that block; and as I got nearly to St. Charles I blew my horn and slowed down to about eight miles an hour. I looked in all directions, and the intersection there was completely clear, so I started on across. There was no traffic in sight as I started in the intersection; not in any direction. When I saw there was no traffic there, I started on across the street — across St. Charles Avenue. As I got about half way across, I was meeting a car coming about to my right, and it was coming awfully fast, an awful speed. . . My estimate was fifty or fifty-five miles an hour. . . He was in front of the third house from the corner, which would be about 150 feet, and the stop sign was there right in front of him. And I realized he could not stop . . he was coming exactly to the point where I would be. I was about the center of the intersection of Barnett and St. Charles when I saw him down there at that third house on St. Charles Avenue. When I saw him in the manner I have stated, the first thing I did, I looked at him the second time, and I saw he definitely was not stopping for the stop sign; then I tried my best to speed up; then I pulled to the left, because I realized he was just coming so fast and so straight; and I tried to get on the lefthand sidewalk, but he struck me before I got there. He struck my car behind the right-hand door. . . Mr. Coker did not stop for the boulevard stop sign. . . As to whether or not there was any space in the rear of my automobile on that intersection in which he could have traveled, if he had so elected — almost the entire street, because my front wheels were about even with the curb, where I was headed . . the curb on the south side of St. Charles Avenue. . . I began slowing down as I blew my horn, and I slowed down to about eight miles an hour . . nobody coming out the intersection. I was not in it when I slowed down. I slowed down before I got in it. . . The front end of my car was a little bit beyond the intersection. I saw a car coming. . . I tried to get over this way; as I did that he struck my car."

The defendant, W. E. Coker, testified in part: "I got on St. Charles at Bonaventure. . . There was no traffic on the street going up to Barnett. I was operating my car on the right side of the street. I was going twenty-five, maybe thirty miles an hour from the time I got on St. Charles until I got up to approaching Barnett. I was going up St. Charles; and when I approached the stop sign up that I didn't come to a dead stop, I slowed down and went into second; there was not a car between there and Highland Avenue, and there was no cars coming, and nobody on the street anywhere . . and as I got out into the street, near the middle, then this lady came over the hill there; and she was running I would say thirty-five to forty miles an hour — that is a little steep hill there — and they generally speed up to make that in high; and when I seen her she was possibly ten feet away, or fifteen, and I put on my brakes, and jerked the car to the right a little bit, and the cars came together. My left headlight hit about the back of her front door, and my car stopped there, and hers went on up Barnett and turned over." 1. Ground one of the amended motion for a new trial complains of the following charge: "I charge you, gentlemen, that although vehicles traveling along a street which has been designated by law as a traffic boulevard have the right of way over vehicles coming into the boulevard from intersecting streets, this right is not absolute under all circumstances and conditions, but is relative only, and is determinable by the relative positions of the approaching vehicles, their respective speed, and other attendant circumstances. A vehicle, therefore, when crossing such a traffic boulevard at an intersecting street, may, under some conditions, have the right of way over vehicles approaching on the boulevard, and therefore not be guilty of negligence or of a violation of law, in attempting to cross the boulevard in front of the approaching vehicle but, in crossing the boulevard, may, when considering the relative positions of both vehicles, their relative speed and other circumstances, be in the exercise of ordinary care and diligence." We think that under the facts of the case this charge was error. It had the effect of relieving the defendant Coker of the positive duty of stopping his automobile at the boulevard stop sign, and authorized him to use his judgment and discretion in proceeding across a boulevard without stopping. The purpose of the boulevard stop sign is exactly the opposite. The requirement is that the vehicle approaching a boulevard or through thoroughfare shall be brought to a complete stop whether day or night, rainy or fair, whether there are many vehicles proceeding along the boulevard or none at all, so that if there are vehicles approaching on the boulevard, the driver of the vehicles approaching the boulevard may exercise his judgment while standing still, and calmly and deliberately, and not "on the run." If one approaching a boulevard stop sign could ignore the sign and undertake to use his judgment as to whether he should stop or not, and be relieved of the duty to stop because his judgment dictated that he could safely proceed without stopping, the requirement to stop would be a futile, useless gesture. The rule stated in the charge applies to intersecting highways and streets where right-of-way rules apply.Essig v. Cheves, 75 Ga. App. 870 (44 S.E. 712); Smeltzer v. Atlantic Coach Co., 49 Ga. App. 755 (176 S.E. 846);Brown v. Sanders, 44 Ga. App. 114 (160 S.E. 542); but it does not apply where there is a requirement to stop, until the driver approaching the stop sign actually comes to a complete stop as required. Then, of course, he must exercise his judgment as to when to start and cross or drive into the boulevard. We cannot say that the charge was harmless merely because the jury probably found both parties negligent and applied the comparative-negligence doctrine. We do not know what effect the charge had upon their application of the doctrine, if they applied it.

2. The court did not err in submitting to the jury the issues raised by the defendant's amended answer. This ruling applies to grounds five and six of the amended motion.

3. The court did not err in refusing to charge the first sentence of the following request: "I charge you . . in passing upon the question of pain and suffering you may consider any scars, disfigurements, and damage to the plaintiff's body resulting from such injuries. Any shortening of life from actual worry and pain caused by the injuries is also an element which you may consider in passing upon the question of pain and suffering." The requested matter contained in the first sentence was substantially covered by the general charge. The second sentence does not state a correct rule under any and all circumstances. Since this ground is not complete in itself and refers us to pages 27 through 36 of the amended motion, the assignment of error on the second sentence will not be considered.

4. Grounds eight through twelve are not complete in themselves, and will not be considered.

5. The error complained of in ground thirteen will not likely occur on another trial, so that ground is not passed on.

6. It was not error for the court to refuse to admit testimony of a witness other than the plaintiff as to whether the plaintiff looked older after the accident, since there was no effort to show that such a result was due to the accident or that the plaintiff was also of the opinion that she looked older due to the injuries. Such a fact would not be an element of pain and suffering unless the injury caused it and unless the plaintiff was conscious of it to the extent that it contributed to her pain and suffering.

7. As the case is being reversed on another ground, it is unnecessary to consider the ground based on inadequacy of the verdict.

The court erred in overruling the motion for a new trial because of the erroneous charge set forth in division one of this opinion.

Judgment reversed. Sutton, C. J., and Parker, J., concur.