Ivey v. Hall , 77 Ga. App. 350 ( 1948 )

The court erred in overruling the motion for a new trial because of the error in the charge of the court complained of in ground 3 of the motion.

DECIDED JULY 8, 1948. George R. Hall sued Jack L. Ivey for damages allegedly caused by the negligence of the defendant. The petition alleged that Hall was traveling north on Highway No. 90 and that Ivey was approaching the highway on a dirt road, called Cedar Valley Church Road, both traveling towards the intersection of the two named roads, with Hall approaching the intersection to Ivey's right; that Ivey in a sudden and abrupt manner, without stopping at the intersection and without giving any warning or signal, drove his car from the dirt road onto the highway in front of and in the path of Hall's oncoming car, and that the right front of Hall's car struck the left rear of Ivey's car resulting in injuries to Hall and to his automobile. The specifications of negligence are as follows: "(a) In driving from said dirt road onto State Highway No. 90 when the same was not sufficiently clear of approaching traffic on his right to permit him to traverse said intersection without interference in violation of the law of Georgia, the same being negligence per se; (b) In driving upon Highway No. 90 immediately in the path of petitioner's car and failing to give the right-of-way to petitioner's car approaching to the right of defendant's car at said intersecting roads; the same being negligence per se; (c) In driving onto Highway No. 90 from said dirt road, in a sudden and abrupt manner, and without giving previous warning by horn or other signal, and without slowing down or stopping; (d) In failing to observe the approach of petitioner's car on his right and not apprehending that a collision was eminent by his traversing said intersection in front of and in the pathway of petitioner's car; (e) In not reducing his speed at said intersection and having his car under control at all times while traversing said intersection, so as to avoid a collision at a place which he should have apprehended the likelihood or probability of a collision; (f) In approaching said intersection and traversing the same at a rate of speed faster than was reasonable and safe, without having due regard for the character of the intersection, and use being made by petitioner of Highway No. 90, at said time and place." The jury found for the plaintiff and the defendant excepts to the overruling of his motion for a new trial. 1. Ground one of the amended motion complains of the following charge: "The next charge of negligence is that the defendant drove upon the highway in the path of petitioner's car and failed to give the right-of-way to petitioner's car approaching to the right of defendant at said intersection of the road. I charge you, under the law of this State it is provided where one is coming out of an intersecting road, if another is occupying the other intersecting road or the road the defendant is driving on intersects, and if the defendant here was to the left, was to the right of the driver on the highway, the plaintiff here, then it was the duty of the defendant, Mr. Ivey, to surrender or yield the right-of-way to this plaintiff, provided he saw the approaching car at the time he was entering the intersection or by the exercise of ordinary care should have seen it, and provided further that if his failure to yield that right-of-way you could say was the proximate cause of the damage." We think that this charge was at least inapt in two particulars. We make no ruling on whether it was such error as would alone require the grant of a new trial as the error will not likely occur on another trial. The judge charged that if the defendant "was to the left, was to the right of the driver on the highway" (the plaintiff) "then it was the duty of the defendant to surrender or yield the right-of-way to this petitioner," etc. This charge will not likely occur again. Immediately following the above excerpt the judge charged, "provided he saw this approaching car at the time he was entering the intersection or by the exercise of ordinary care should have seen it, and provided further that if his failure to yield that right-of-way you could say was the proximate cause of the damage." The last proviso left the question of whether the plaintiff had the right-of-way without explaining to them how to determine the question. It was not merely the question whether the defendant could see the plaintiff. See the rule stated in Smeltzer v.Atlanta Coach Co., 44 Ga. App. 53 (160 S.E. 665); Laseter v. Clark, 54 Ga. App. 669 (2) (189 S.E. 265); Brown v.Sanders, 44 Ga. App. 114 (1) (160 S.E. 542).

2. That a charge which is correct in itself does not contain another applicable principle of law is not a good assignment of error. Ground 2 of the amended motion is without merit.

3. Ground 3 complains of the following charge: "The defendant contends that this plaintiff was negligent in that he failed to slow down at this intersection or failed to observe the side-road sign on the highway, he was negligent in that respect, and that that produced this injury. The plaintiff contends in that connection, gentlemen of the jury, that he did not know there was a side-road sign on that highway nor did he know there was an intersecting or side road. A man is not chargeable for anything or any act that he may do if he did not know or in the exercise of ordinary care could not have known that there was a side-road sign or an intersecting highway coming into this ninety." The evidence showed that the Cedar Valley Church Road intersected Highway No. 90 at the point in question and that there was a State Highway intersection sign on the highway designating the intersection and the sign was facing south the direction from which Hall approached the intersection. Code, § 68-303 (i), provides: "An operator shall reduce speed at crossings or intersection of highways, on bridges, or sharp curves and steep descents, and when passing any animal being led on the highway." The evidence at least authorized a finding that Hall did not reduce speed at the intersection. The violation of any of the subsections of Code § 68-303 is negligence per se.Hollomon v. Hopson, 45 Ga. App. 762 (3) (166 S.E. 45);Folds v. Auto Mutual Indemnity Co., 55 Ga. App. 198 (2) (189 S.E. 711); Whatley v. Henry, 65 Ga. App. 668 (1) (16 S.E.2d, 214). Whether or not one is negligent in the violation of a statute is not issuable. Atlanta West Point R. Co. v.West, 38 Ga. App. 300 (143 S.E. 785). The law says that if one fails to reduce speed at an intersection of highways under such facts as we have in this case, he is guilty of negligence as a matter of law whether he knew of the intersection or not. The fact that the plaintiff in this case, however, might have been guilty of negligence per se would not necessarily mean that such negligence was the sole proximate cause of the injuries, or that it was one proximately contributing cause. Whether the plaintiff's negligence barred him from a recovery or required a reduction of damages allowed him, or whether it had nothing to do with the injuries are all questions for a jury who will arrive at a conclusion from the facts and circumstances of the case which are relevant to such questions. All we are holding is that if the plaintiff did not reduce speed at the intersection, under the facts in this case, he would be guilty of negligence as a matter of law, whether he knew of the intersection or not, and whether he could have discovered it by the exercise of ordinary care or not. The charge was error and harmful because it authorized the jury to find that even if Hall did not reduce speed at the intersection, such failure would not be negligence if he did not know of the intersection and could not have discovered it by the exercise of ordinary care, and that therefore such failure to reduce speed could not be such proximate cause of the injuries as would bar the plaintiff's recovery or such proximately contributing cause as would reduce his damages if he was otherwise entitled to recover.

Cases are cited by the defendant in error showing that an emergency may excuse the violation of a traffic regulation. We do not see how these are applicable to this case because Hall had reached the intersection before the wreck occurred. If there was an emergency it did not occur until after Hall's duty to reduce speed had passed or when his having failed to reduce speed could be called an emergency since he could not create or contribute to an emergency and then claim umbrage by reason of it. The contention that Code § 68-313 shows that the preceding statutory regulations are not intended to affect civil actions is without merit. We do not know of a case specifically so holding, but the physical precedents applying the regulations to civil actions are too numerous to enumerate. The court erred in giving this charge.

4. Ground 9 complains of the following charge: "Where in such sudden peril requiring instinctive action two alternates are presented to plaintiff, for example, the one of stopping a car and the other of trying to go around an obstacle, either of which might fairly have been chosen by a reasonably prudent person, the law will not hold plaintiff, the driver of the car, guilty of negligence in taking either, though he did not make the wiser choice." The error asserted is that "the court expressed an opinion, namely, that the plaintiff was faced with a sudden peril which could have been brought about only by acts of the defendant. Movant contends that the choice of words by the court, in the above quoted passage, was unfortunate and undoubtedly led the jury to believe that Ivey had been negligent and through his negligence had created a situation which caused Hall to invoke the doctrine of emergency." The charge is inapt as tending to assume a sudden peril to which the plaintiff did not contribute, but it will not likely occur on another trial.

5. The general grounds of the motion and special ground 7 are not passed on.

6. There is no merit in the other special grounds.

The court erred in overruling the motion for a new trial.

Under the act of the General Assembly, approved March 8, 1945 (Ga. L. 1945, page 232, Code, Ann. Supp., § 24-3501) this case was considered and decided by the court as a whole.

Judgment reversed. Sutton, C. J., and Felton and Townsend,JJ., concur. MacIntyre, P. J., and Gardner and Parker, JJ.,concur specially.