Tallent v. McKelvey , 105 Ga. App. 660 ( 1962 )

Nichols, Presiding Judge,

dissenting. The evidence shows without dispute that the plaintiff and the defendant entered the intersection from right angles, that the defendant entered from the plaintiff’s right, and that the plaintiff’s motorcycle struck the left side of the defendant’s automobile. Beyond this there seems to be no agreement as to how the collision occurred. Each party testified that he had the green (or go) light as he entered the intersection and that the light changed to amber (caution) after he had entered the intersection but before the collision actually occurred. The plaintiff presented witnesses whose testimony at least inferred that he entered the intersection with the green (or go) light and the defendant presented witnesses whose testimony at least inferred that he entered the intersection with the green .(or go) light. Obviously-—since.the testimony as to how the electrical control system operated was that the light changed from green (go) to amber (caution) to red (stop) and then to green (go), and that while either the green (go) or amber (caution) was on facing traffic on either street the light facing traffic on the cross-street was red (stop)—• both parties could not b.e telling the truth when they testified that the light facing them turned from green (go) to amber (caution) after they entered the intersection.

The majority opinion, as well as the dissent of Chief Judge Felton, is based on the theory that comparative negligence is not in the case, and that either the plaintiff’s or the defendant’s negligence was the sole proximate cause of the collision.

In the writer’s opinion the case does not fall into such category. In Eddleman v. Askew, 50 Ga. App. 540 (3) (179 SE 247), dealing with the right-of-way of the driver on the right, it was held: “But even though a driver on the left has failed to observe a right-of-way statute and is thus guilty of negligence per se, or has otherwise failed to exercise ordinary care in approaching the intersection, this will not render such a driver liable for a collision, unless such negligence proximately contributed to the collision. This is true for the reason that such negligence of a driver approaching on the left will not relieve the driver having the right of way of his own legal duty to exercise ordinary care under the facts and circumstances of the situation. His right of way and right to assume the absence of negligence by others do not entitle him -to drive blindly or recklessly across an intersection, especially one which might be termed a ‘blind intersection,’ without regard to the conditions and consequences. It is his own duty to exercise ordinary care in being alert to observe vehicles approaching the crossing, and to exercise ordinary care in the control, speed, and movements of his car to avoid a collision, after he sees or by ordinary diligence could have seen that one is threatened or imminent.” See also Cox v. Nix, 87 Ga. App. 837 (75 SE2d 331), where it was held that the question of comparative negligence was one for the jury in a case involving an intersection collision.

In addition to the evidence shown above there was evidence that the plaintiff did not look to his right until a second or so before the impact yet he looked to the left. The testimony showed that the intersecting streets were four and six lanes wide, and there was evidence that the plaintiff had crossed at least two lanes of the street on which the defendant was driving when the collision occurred, while the defendant had crossed approximately two and one-half lanes on the street on which the plaintiff was driving. Each was driving at approximately the same speed at the time of the collision (15 or 20 miles per hour), and assuming, but not deciding, that the defendant did enter the intersection when the red (stop) light was facing him, yet since all the evidence shows that neither the plaintiff nor the defendant had been stopped at the intersection before they entered it, the jury was authorized under the decision in the case of Eddleman v. Askew, 50 Ga. App. 540, supra, and similar cases to find that the plaintiff was also negligent and to apply the law of comparative negligence. The charge on comparative negligence was authorized by the evidence and the amount of the verdict, when the jury applied such yardstick, was not so small as to show gross mistake as the majority opinion holds. See also as the duty to reduce speed upon entering an intersection, Hardwick v. Ga. Power Co., 100 Ga. App. 38 (110 SE2d 24), where it was held that such question is for the jury.

I am authorized to say that Judges Frankum and Russell concur in this dissent.