Smith v. American Oil Company ( 1948 )

1. The evidence sustains the verdict.

2. (a) Special grounds 1 and 2: One who knowingly and voluntarily takes a risk to his person, the danger of which is so obvious that the act of taking such risk in and of itself amounts to a failure to exercise ordinary diligence for his own safety can not hold another liable for damages for injuries thus occasioned. This is usually a jury question. Under the evidence in this case, it is a jury question.

(b) As to whether it was necessary for the deceased in the performance of his duty, to ride on the left fender of the truck of his employer, and whether so riding, if not necessary, had any causal connection with the collision, presents a question of fact and not of law under the evidence.

(c) "In order for a party to be held liable for negligence, it is not necessary that he should have been able to anticipate the particular consequences which ensued, it is sufficient, if in ordinary prudence he might have foreseen that some injuries would result from his act or omission and that consequences of a generally injurious nature might result."

(d) One who violates a municipal ordinance regulating the use of motor vehicles is bound to anticipate that others like himself might violate a municipal traffic ordinance. In such event it is incumbent on such a one to guard not only against negligence on the part of others which he might discover in time to avoid the consequences, but also against the ordinary danger of their being negligent which he might not discover until too late for him to avoid it.

(e) Where the separate acts of tort-feasors concur as the proximate cause of an injury, the injured person may bring his petition for recovery against one of such joint tort-feasors only, and in such event the plaintiff is not entitled to recover if the evidence shows that the negligence of the plaintiff is equal to or is greater than that of the defendant. In such a situation, it is not error for the court to fail to charge that the plaintiff is entitled to recover if his negligence is less than the aggregate negligence of the joint tort-feasors.

(f) Special ground 8 shows no cause for reversal, for the reasons set out in the body of the opinion.

(g) The ordinances which were defensively pleaded and introduced without objection, and the evidence in connection therewith authorized the charge of the court to which exception is urged in special ground 5.

(h) Special ground 9 is without merit for the reasons given in the body of the opinion.

DECIDED JUNE 9, 1948. REHEARING DENIED JULY 23, 1948. Mrs. Maude Smith brought a petition seeking recovery for the value of the life of her husband, whom she alleges was negligently killed by the defendants. The suit was against the American Oil Company, a foreign corporation, and George Sears, the distributing agent of the oil company, and Joe Seay, the operator of the truck of the oil company. The petition alleges that the defendant driver Seay at the time of the injuries to the deceased, was the agent of the oil company, acting within the scope of his employment on the occasion in question. At the time of the collision the deceased was employed by the Georgia Packing Company of Thomasville, Georgia, and the deceased was engaged in the transportation of meat between the plant of the packing company and the freezer plant located at the Thomasville Ice Company in Thomasville. The meat was being hauled in an enclosed refrigerator truck on which it was allegedly necessary for the deceased to ride back and forth to assist in the loading of the meat into the packing company truck at one place, and unloading the same at the other place. The operator of the packing company truck was Calvin House. It is further alleged that about 11 o'clock on February 9, 1944, while Calvin House was operating the packing company truck as it was returning from the freezer plant of the ice company with a load of meat intended for delivery to the United States Army, the collision occurred. The petition further alleged:

"Paragraph 9. At said time said truck was fully loaded, the front seat was occupied by the driver and Corporal Riminoski, Army Meat Inspector stationed at the plant of the said Georgia Packing Company, the available space in the rear of the body of the truck was occupied by two other employees of the Georgia Packing Company, and the truck having no running boards, Atwood Fowler, another employee of said packing company, was riding on the right fender and petitioner's husband was riding on the left fender of said truck.

"Paragraph 10. Said refrigerator truck was proceeding in an easterly direction on Jefferson Street in said City of Thomasville, Georgia, at a rate of speed of between five and ten miles an hour, and as it approached the intersection with Crawford Street, above which intersection is located an electric blinker or caution light, the driver brought said truck almost to a dead stop and shifted into low gear, and entered and was crossing said intersection at a rate of speed not in excess of five miles an hour.

"Paragraph 11. As House, the driver of the truck on which petitioner's husband was riding, was about to enter said intersection, he observed the delivery truck of the American Oil Company proceeding southward on Crawford Street and approaching the intersection from his left-hand side, but at that time still a distance of seventy or eighty feet away. As he shifted into low gear and proceeded into and across said intersection said House assumed that the driver of the oil company truck, the defendant Joe Seay, would slow down and yield the right of way, because, first, the said House was first to reach and enter said intersection, and, second, it was the legal duty of the driver of said oil truck, approaching from House's left, to yield said right of way.

"Paragraph 12. Notwithstanding the legal duty of the driver of said oil truck to yield the right of way to said House, in the circumstances above set out, the said Seay proceeded into said intersection, and without stopping or even slowing down said oil truck, and without any effort to avoid a collision with the truck on which petitioner's husband was riding until he was right on the same and it was too late to avoid a collision therewith, he swerved said oil truck to the left, drove the same into the left front fender and left door of the packing company truck, striking petitioner's husband with such force and violence that he was knocked from said left fender, thrown on the pavement and run over by said oil truck and instantly killed.

"Paragraph 13. Said collision and the death of petitioner's husband resulting therefrom were directly and proximately caused by the following acts of negligence on the part of the defendant Joe Seay, who was then and there the servant and employee of the defendants American Oil Company and George Sears and was engaged in the usual business for which he was employed by them, in driving said oil truck into and against the truck on which petitioner's husband was riding, to-wit:

"(a) In failing to keep and maintain a constant and vigilant lookout ahead in approaching and entering said intersection which is on two of the most prominent thoroughfares of said City of Thomasville with constant traffic thereon.

"(b) In failing to reduce the speed of said oil truck at the intersection of said highways, as expressly required by law.

"(c) In operating said truck in violation of the laws of the State of Georgia in that said truck was not only not equipped with good and serviceable brakes, as expressly required by law, but was in fact totally without any brakes at all when said collision occurred, and the condition of said brakes was well known to the defendants.

"(d) In attempting to cross said intersection at such a rate of speed that he was unable to stop said oil truck when he knew that it had no brakes capable of controlling and stopping the same in the circumstances alleged.

"(e) In entering and attempting to cross said intersection, after it had already been entered and occupied by the driver of the packing company truck, without yielding the right of way to said packing company truck which had approached and entered said intersection from the right-hand side of the driver of said oil truck, it being expressly provided by law ``that the operator of a vehicle shall give the right of way to an operator of another vehicle approaching from the right on an intersecting highway.'"

The remaining allegations of the original petition have to do with the life expectancy of the deceased and the value of his life. The plaintiff amended her petition as follows: "by adding to sub-paragraph (b) of paragraph 13, a comma in lieu of the period at the end thereof, followed by the following words and phrases, ``to-wit, a valid ordinance of the City of Thomasville, Georgia, then in force and effect and providing as follows: Vehicles shall slow down to a rate of speed not greater than twelve miles per hour, upon crossing intersecting streets.'"

All the defendants filed answers denying the material allegations of the plaintiff's petition, and thereafter filed amendments as follows:

"1. That there was on February 9, 1944, at the time said accident occurred, in force in the City of Thomasville a valid municipal ordinance regulating the use of motor vehicles in said City as follows:

"``It shall be unlawful for any person to ride on any vehicle upon any portion thereof not designated or intended for the use of passengers when the vehicle is in motion. This provision shall not apply to an employee engaged in the necessary discharge of a duty, or within truck bodies in space intended for merchandise.' And that the deceased Cecil Ivey Smith was violating such ordinance at the time of the alleged accident and by reason of such violation was guilty of negligence per se, such negligence being the proximate cause of the injury and damage sued for.

"2. There was in force in the City of Thomasville on February 9, 1944, at the time of the alleged accident, a valid municipal ordinance regulating the use of motor vehicles in said City as follows:

"``That at the intersection of Crawford Street with Jefferson Street, Crawford Street is hereby made and declared to be a through street, and every operator of a vehicle or other conveyance traversing Crawford Street from Jefferson Street shall bring such vehicle or conveyance to a full stop at the place where such street meets the prolongation of the property line of Crawford Street,' and these defendants alleged that the driver of the truck of the Georgia Packing Company, on which the deceased Cecil Ivey Smith, the employee of the Georgia Packing Company, was riding, violated such ordinance in driving into Crawford Street without bringing to a full stop at the place where Jefferson Street meets the prolongation of the property line of Crawford Street the truck of the Georgia Packing Company which he was driving; that such violation was negligence per se, and was the proximate cause of the injury and damage sued for.

"3. That there was in force in the City of Thomasville on February 9, 1944, at the time of the alleged accident a valid municipal ordinance regulating the use of motor vehicles in said City, as follows: ``The operator of a motor vehicle upon coming to a street intersection which is a stop street and is so marked, shall not cross said stop line until he has brought his motor vehicle to a complete standstill, regardless of the direction in which he intends to turn,' and that C. D. House, the driver of the truck of the Georgia Packing Company violated said ordinance by crossing the stop line at Crawford Street, Jefferson Street being a stop street and so marked, before he brought his motor vehicle to a complete standstill; that such violation was negligence per se, and was the proximate cause of the injury and damage sued for."

The collision occurred in the City of Thomasville. The suit was instituted in the City Court of Colquitt County. There are no assignments of error on demurrers or special pleas. The jury returned a verdict in favor of the defendants. A motion for a new trial was filed and thereafter amended. The motion for a new trial was duly overruled and it is on this judgment that the plaintiff assigns error. Because of the nature of the assignments of error, the contentions of both parties as to the principles of law applicable to the issues made by the pleadings, and the evidence of both parties as applied to these issues, we deem it helpful to give here a brief summary of the material evidence of both parties:

For the plaintiff: The manager of the packing company testified as to the employment of the deceased and that the deceased on the occasion in question was engaged in getting shipments for Government orders and that he had gone down to the ice company to get a shipment and that he had been so engaged between six months and a year; that they had safety meetings for their employees; that he did not recall Smith attending any of them, but that the driver of the truck for the packing company had attended them; that he did discuss with House and other employees the question of putting the employees in a safe place when the equipment was being driven; that he gave them instructions as to how they should drive the trucks and about the safety of the employees; that he did not recall giving any instructions as to just where the employees should drive; that he knew that the employees when going to the ice plant were riding on the fenders; that he did not stop them from this because the trucks when being driven through the town were being driven about 15 miles per hour; that the employees were instructed to observe the traffic regulations; that he had instructed the police department to notify him of the arrest of any of the employees for traffic violations; that the road from the ice plant to the packing company was practically all paved with the exception of about a block and a half; that he did not think that it was dangerous to ride on the fender at the worst place of the road; that the riding back and forth between the ice plant and the packing company had been going on for approximately three or four years in handling Government orders. The employees who loaded the meat at one point unloaded it at the next point and it was necessary for the employees to go along with the truck from one point to another; that they could furnish no method of conveyance other than the truck for the employees to ride except on the truck hauling the meat; that refrigerator trucks were required to keep the meat in transportation and it was necessary to keep the doors closed and that inside the refrigerated truck is not a satisfactory place to ride; that since the accident witness did not think that any of the employees had been riding on the fenders and that they had been going to the ice plant for meat as they did before; since then, unless the employees could get in the cab or the back, they have gone in another car. Witness gave as his opinion that three men could ride in a cab; that if the truck were empty, a large number of employees could ride in the back; that if the truck were half full, half the men could ride in the back of the truck; that the employees had been riding in the back of the truck when going to and from the ice plant and that it was not so uncomfortable that they could not ride therein; that it took about four to six men to load and unload the truck. It did not occur to witness that it was dangerous for employees to ride on the fenders until the deceased was killed. The witness was familiar with the intersection of Jefferson and Crawford Streets in Thomasville. In the opinion of the witness, who was familiar with the intersection of the streets where the collision occurred, he knew nothing that would prevent the driver of the oil company truck from seeing. When the truck was loaded with meat at the ice plant it was then driven back by the packing company building to get invoices and at that time all the employees got off the truck except the driver; that it was about three miles to the ice plant and return to the packing company house; that the common practice in any refrigeration is to keep the doors of a refrigeration truck closed.

Calvin House, the driver of the packing company truck on the day of the collision, testified that at the time of the collision he was traveling east on Jefferson Street; that the oil company truck was going south on Crawford Street; that there was a red light overhead at this intersection that blinks; that there was a caution light; that he looked to see if anyone was entering the intersection and that if the way was clear, one went on across, and if not, one must not go across; that the ice company truck had been to the ice plant for a load of pork for the Army; that the truck was slowed down enough; that it was put in double low or starting gear; that he observed the oil company truck on Crawford Street at least half way to the next corner when he started out into the intersection; that it is impossible to go very fast in double low; that when he had driven the truck over half way of the street, he saw the oil company truck which was still coming right toward him and that he couldn't do anything else and he tried to turn the truck to the right so that the oil company truck would probably turn to the left and avoid hitting the packing company truck, but as near as he could see, the oil company truck came right into the cab of the packing company truck. At this particular point he testified: "My truck being turned to the right a little bit, his truck hit mine on the left door sorter reared up, and when it did it knocked these fellows off the fender and Mr. Smith on the left, of course, when the truck sorter bounded and reared over it knocked him off the left fender of mine and his truck ran over this fellow and killed him. When it got stopped it had jammed two cars up together badly. The oil truck, the front of the truck went at least twelve or fifteen feet counting the front of the truck which hit me, after it hit me. It hit a model ``A' Ford parked near the corner and another one behind it and jammed the model ``A' Ford up in front of the car. The speed of the oil truck at the time of the collision was between twenty and twenty-five miles an hour. When I first observed the oil truck at the nearer half of the block it was going about the same speed, twenty or twenty-five miles per hour. If he over checked his speed, I couldn't tell it. As I approached the intersection, I was going about fifteen miles an hour, but from the moment I shifted into double low gear my speed couldn't have been much over five or seven miles an hour. I had been hauling meat back and forth from between those two locations ever since I started working there, five years probably. I have been carrying folks on fenders all that time up until this accident if the truck was loaded, and on this occasion it was loaded with pork and sausage for the Army. It wasn't unloaded when we carried it back by the packing plant. We went by the plant to pick up the driver that would make the delivery and pick up the invoices. We got a little bit of something, a very small amount. We do freeze sausage. I don't remember right off hand this particular Army camp it was to be delivered to. The product was frozen, that is what we had it stored at the ice company for. It would have been injurious to the product to have left the refrigerator doors open from the ice plant to the packing plant. The Army specifications require delivery under closed refrigeration and it would have been a violation of those specifications if we had left those doors open. Cecil Smith worked under me. He was a fine person and had a chance to build himself up, really smart. He was energetic, intelligent, sober, honest and dependable. He was there every day possible. On this occasion a soldier and inspector, Corporal Rimonoski, with the United States Army stationed at our plant, was with me in the cab. He made the trip for the purpose of inspecting this meat. Edward Fowler was on the right fender and didn't get hurt to amount to anything. There were two negroes in the back. The road between the packing plant and the ice plant was smooth. I have been hauling between the two places about five years and when the truck was loaded people rode on the fenders. I have never driven over twenty miles per hour and Cecil Smith knew that as he had accompanied me from time to time on those trips. I was his superior. I thought that was the best place to put him and that's why I did put him on the fender. As I went into this intersection I would estimate that the oil company truck was half way up to the other corner and half the block, approaching from my left and I was approaching from his right. I didn't see the brakes on the oil truck tested on this occasion. There was two fellows that did." On further examination the same witness testified: "I saw the light blinking red there in front of me that went on and off very quickly. I had seen the truck, but knew I had the right of way, and it was so far up the street I started on across it. He was about a half a block, going twenty miles an hour. I was following him down the street with my eyes and watched from this side too. I didn't watch him as he came on down to my street until I got out in the street a little ways, looked again and saw he was coming in a straight beeline toward me. The front end of the truck was under the signal light. I was seeing him all along like when anybody drives out in a street they are keeping their eyes looking. I was watching him all the time to midway of that block until we had the wreck. In double low gear you can't do much over twenty-five miles an hour, you might go twenty-eight. You can put it in high any speed you want to. It should be up around fifteen or twenty miles an hour. You got two more gears to go before you get to high, from double low, low, second and high. We have air brakes on the rear wheels and hydraulic brakes on the rear wheels [we did not know that this was mechanically possible] of the tractor, in good working order. I used them then and going to the ice company. I used them at the scene of the wreck, slowed down and stopped out in the street. I did not use them between there and where I stopped. When he hit me my truck was already stopped. When he hit me my truck wasn't moving at all. Didn't move after the collision unless he just jarred it. I turned to the right to avoid the truck. As soon as I knew he was going to hit me I just grabbed hold of something. I jerked my wheel suddenly to the right and jammed on my brakes, hydraulic brakes and air brakes. Immediately after that he hit me. I did all that before he hit me, then when he hit me my truck was sorter facing the theatre. . . When I put on brakes the truck stopped and it wasn't long, just a few moments, until the truck hit me. When I put on the brakes Mr. Fowler stayed on the right front fender and Mr. Smith stayed on the left front fender. After the truck hit my truck they both went off at the same time, one went one way and one the other. Mr. Fowler to the right, he kinder hit and sorter rolled. Hit the pavement about three or four feet from the front of the truck and rolled over ten or twelve feet. Mr. Smith hit about the same distance in front of the truck, sorter rolled over squatting like, and if I remember right he hit on his hands and feet. He was almost gaining the curb, not quite, and the hind wheel of the oil company truck was on one of his hands. I don't remember which way he was lying. I know the front wheel of the oil company truck knocked him off and rolled over him. I believe his body was under the truck. I jumped out and called him but he didn't answer. I remember his hand was under the wheel, right rear wheel. I don't remember which way his feet were pointing, it happened so quick, I won't say for sure about that. . . I believe this traffic light has been there ever since I've been in Thomasville, that's my recollection. When I passed that intersection I looked at the light because you are supposed to look at the light. The traffic in Thomasville is controlled by lights if there is a light there. I observed Joe Seay driving the oil truck about half way the block. Nothing happened that caused me to think he was about to run into me until I got out in the street. I didn't know his brakes were not all right. I don't know whether he had any brakes or whether he didn't, but evidently he did not have, at the time I entered the intersection. I assumed that I had the right of way because I was on the right and had no reason to believe that he wouldn't yield to me." Cross-Examination: "Mr. Smith had been with me on the trip a number of times before. I don't know how many times he had ridden on the fender, probably about ten times immediately preceding this accident, about what time he had been working there. . . I went down Crawford Street and Jefferson Street and Dawson Avenue in taking him back and forth. Jefferson Street was used quite a bit, lots of traffic, Crawford Street didn't have so much traffic." He further testified, on cross-examination, that he was shipping clerk and handled all shipments to Army civilians; that he hired the deceased, who had been working about a month or five weeks; witness did not go on the road with the truck, but just from the plant to the ice company freezer; that on the day of the collision the truck had been driven from the packing house to the ice plant empty; that the deceased and two others rode in the back; that they left the door partly open; that it wasn't dangerous to the door; that when they had frozen foods in the truck, employees were not allowed to ride inside; that the packing company truck contained two compartments, the first compartment was loaded and about two-thirds of the back; that there was a rear door to the back compartment; that there was about a three by six feet space left in the back; that when the truck was loaded at the ice plant it was driven east on Jefferson Street; that he slowed down, did not completely stop but it was slow enough; and that when he came to the intersection he slowed down to put the truck in slow gear. The witness further testified as to certain photographs taken near and at different points of the intersection and streets where the collision occurred. One of the photographs showed the word "STOP." The witness testified that he did not think the stop sign was there when the collision occurred. The stop sign was in the cement before entering the intersection going east on Jefferson Street. The witness further testified that when the collision occurred and when the packing company truck stopped, the front end of it was twelve or fifteen feet from under the overhead blinker light. Deceased was riding the left fender of the packing company truck and another employee, Fowler, was riding on the right fender.

J. W. Youngblood testified that he was a garage operator in the City of Thomasville and visited the scene of the collision at the request of the Chief of Police of Thomasville; that when he arrived there he found the oil company truck had jumped over on a passenger car; he examined the brakes and the truck didn't have any; he cranked the truck to back it way from the car; that "the first push I made wouldn't stop, the second push would stop it. When I put my foot on the brakes it went to the bottom with no braking effect." Upon recall witness testified that "red" on a traffic light means "stop" "green" means "go" and the "blinker" means to slow up and be careful at an intersection. The public generally know what signal lights indicate.

The Chief of Police testified that upon visiting the scene of the collision he had the oil truck's brakes examined and they were faulty; that they had to be pumped to make them operate; they were hydraulic brakes; that there were no obstructions at the intersection to prevent the operator of the oil company truck from seeing the packing company truck and the boys on the fender if he had been looking; witness testified that in a conversation with the driver of the oil truck the driver stated that he didn't see the packing company truck until he got right on it and that there was nothing to keep him from seeing it. The witness had the traffic light put up under the instructions of the traffic authorities. It was a stop and go light before being changed to a blinking light. The word "Stop" painted in the street had been on the pavement for six or seven years before the overhead traffic light was put there; it would tear up the pavement to take the stop sign out of the pavement; it was put there as a sample; the city wouldn't buy any more of them; no attention was ever paid to the stop sign on the street; the witness did not see any sign of fluid leaking or any recent damage to the oil truck.

Ensley Law testified that he was standing on the corner near the intersection and saw Georgia Packing Company truck pass along Jefferson Street. It was traveling about fifteen miles an hour as it went into the intersection. As the packing company truck was under the traffic light the oil company truck hit it. The oil company truck was making approximately twenty-five or thirty miles an hour and didn't slow up; the oil company truck hit the left door of the packing company truck and the deceased was knocked off the fender and he was practically dead a few minutes after he had been flung or knocked from the fender. The driver of the oil company truck made no effort to stop; instead of cutting back to the right to hit the back side of the packing company truck the driver cut to the left and hit the front; the oil company truck hit three other automobiles. In doing so the oil company truck burst one of the tires of the first car, knocked that one into another truck. The packing company truck went about ten feet after it was hit. There was nothing to prevent the oil company truck driver from seeing the packing company truck nor from seeing the deceased on the fender of the packing company truck. Before the packing company truck got to the intersection, witness testified that it was being driven approximately twenty miles an hour and slowed down to ten or fifteen miles an hour.

On cross-examination the same witness testified that the packing company truck was traveling about ten or fifteen miles an hour when the collision happened. It slowed down as it entered the intersection. The packing company truck stopped about the time the driver of the oil truck hit the packing company truck. The witness couldn't say whether the packing company truck did or did not stop before the collision. There was nothing to keep the packing company truck driver from seeing the oil company truck.

Atwood Fowler testified that at the time of the collision he was riding on the right fender, deceased was on the left fender of the packing company truck. The packing company truck operator drove up to the intersection. The blinker light was flashing off and on. The packing company truck came almost to a stop. It was hardly moving. He then pulled on across. The street was perfectly clear. As the packing company truck pulled off, witness looked to his left, the direction from which the oil company truck was coming. It was at least seventy-five yards away. The oil company truck came on and about the time the packing company truck got under the traffic light the oil company truck struck the side of the door of the packing company truck and glanced off. The packing company truck was stopped. The oil company truck ran into another car and knocked that one into a second car. When the witness was thrown from the right-hand fender of the packing company truck he saw the deceased lying under the oil company truck. It was on one of the deceased's hands. There was nothing to prevent the driver of the oil company truck from seeing the packing company truck in the intersection nor from seeing the witness and the deceased on the fenders. It was perfectly clear from one truck to another. So far as the witness could tell, the driver of the oil company truck made no effort to stop. He didn't check the speed of the truck. On cross-examination the same witness testified that the trailer to the packing company truck was pretty well full, just about room for two negroes to stand in the back. The back door was about closed. The witness saw the oil company truck about seventy yards away before it got to the packing company truck. The packing company truck did not stop dead still but almost stopped. It came down to low gear. The witness saw the oil company truck first. The driver of the oil company truck didn't give any signal to the driver of the packing company truck. The oil company truck was coming pretty fast, too close to make any signal. The witness was thrown off the right fender several feet before he hit the pavement. The witness lost sight of the deceased before the collision occurred. The witness and deceased were accustomed to ride on the fender of the packing company truck. They both worked in the freezer and were clothed to work in the freezer.

Hosea Van, superintendent for the packing company, testified that he visited the scene of the collision, tested the brakes on the packing company truck; that they were good; that he tested the brakes on the oil company truck; it had no brakes; that he pushed the brakes of the oil company truck with his hands and didn't get any reaction of any kind. It went to the floor. There was no strain at all to get it to the floor. There was no indication of a recent leakage from the oil company truck brakes. None of the riders on the inside of the packing company truck were injured in any way.

For the defendant: O. R. Dupree testified that he lived at the northeast intersection of Crawford and Jefferson Streets; that he had been living at that place a little over two years; that when the collision occurred he was sitting on his porch facing Jefferson Street; that he had a porch facing Crawford Street; that he saw the Georgia Packing Company truck some distance up the block, probably half way up the block from Jefferson Street; that the truck was going east; it was being operated around twenty miles an hour when it entered Crawford Street; this was about the same speed it was coming down the block; the truck did not stop when it entered Crawford Street; on the same occasion the witness saw an oil company truck going south on Crawford Street and saw it entered the intersection of Crawford and Jefferson Street, that the collision occurred very near the center of the street; after the collision the Georgia Packing Company truck stopped against the curb right on the corner on Jefferson Street, — the south corner of Jefferson Street and Crawford Street; after the collision the oil company truck stopped just in its length below on Jefferson Street; the witness did not see either of the trucks try to turn or turn just before the collision happened, but after the collision happened the oil company truck turned to the left and the other turned to the right. On the packing company truck there was a man on each fender and two men in the cab. The witness saw the men on the fenders just before the collision, they were sitting "kinder in front of the fenders," with their feet on the bumper; the man on the left front fender jumped off or was knocked off by the collision; the truck got between the witness and the man on the right fender and he didn't know just how that man got off; the man was going up and through the air; the deceased on the left fender got off the same way; he was killed; the stop sign in the pavement was put down some ten or twelve years prior to the collision when the pavement was laid. The witness supposed he could see the stop sign back a hundred feet from it. He was not sure. The sign has about twelve inch letters; it is made of some sort of metal, with glass knob on top; the packing company truck ran over this stop sign and was going about twenty miles an hour at the time. The oil truck was coming from north to south. The witness went to the scene of the collision. The witness testified that the traffic light at the intersection at the time of the collision was blinking on the Crawford Street side facing the Georgia Packing Company truck, but was not blinking on the side facing the oil company truck. The cross-examination of this witness, while going at length into the testimony of the witness on a previous occasion, in effect is not materially different from that which he gave on direct examination.

Joe Seay, the driver of the oil company truck, a witness for the defendant, testified that he had been driving the oil company truck for approximately three years; on the day of the collision as he was approaching the intersection where the collision occurred he looked to his right and left on Jefferson Street. When he looked right he saw the packing company truck coming. He slowed his truck. He saw the men on the right and left fender of the packing company truck. "The one on the left he did like that (indicating — holding hand up). Held up his hand. I don't know, I thought, my idea was for the man not to come on. He was doing like that (indicating again with hand held up). I was just releasing my brakes and began to come on. I looked the way I was going, if I had kept going he would have just turned me over, I slammed on my brakes, done like that, when he did like that and carried my truck right on down the street and when it hit it knocked me loose from my brakes, knocked the front end around, knocked the lights out of the front, the fender was practically broken off and the bumper it did just like that (indicating). When I saw the man sitting on the fender hold up his hand I thought he meant for the driver of the Georgia Packing Company truck to come to a stop. I thought he was going to. I knew I was on the right street to go ahead on. I slowed down, looked each way and when I looked the way I was going he was right into me then. I tried to hit my brakes. The street I was on there was not any stop signs at all, no light was working in my face. There was no light in my face and there was a stop sign on the other street. I thought under the circumstances I was entitled to go on through. I slowed down, I wasn't speeding at all. I couldn't get any speed, just had got in high, hadn't mashed my foot feed at all. When I looked, I just let it run like that. I had to look the way I was going, too, and when I looked again he was right onto me, and I just take my foot off the gas and jammed the brakes. My brakes were all right. When I hit my brakes and done like that, it knocked my feet off of the brakes. My brakes were good. After the accident the man who died was lying over toward my truck on the right, down on the pavement like this (indicating). He was on his stomach like that, back end of my truck, the right wheel had rolled back on the edge of his fingers, and we rocked the truck and got it off. I helped rock the truck to get it off his hand and get him out. He was off to the side of my truck, over that way to the right. He was not under my truck at all. I didn't hit the man who died. The reason I know I didn't hit him, when those trucks went together, when I looked back like that, I see this man hit, and when I hit my brakes, they did like that just before that happened, like something closing together, and I saw these two men went off like that just before I did like that, he went off like that (indicating). This man that got killed, right in here it wore a hole right in his clothes where he scooted on the pavement. The trucks bent fenders, mine turned as I cut. The man went off like that. He was down there against the curb like that, the man that got killed. I got up here to the curb, rolled by that man and when the truck fell back he was lying right there. His head was against the curb and his feet back like that (indicating). The back wheels were like that, and he was lying with his head against the curb." The witness further testified that he knew there was a traffic light in the center of the intersection and that he was supposed to observe it. It was a one-way blinker; that it didn't blink in witness's face; that he had been traveling over the street he was on when the collision occurred; he had never seen the blinker blinking the way he was going; never had seen the blinker blinking in his face when he approached that intersection; it wasn't against him; when the witness saw the deceased on the fender the oil company truck and the packing company truck were each about fifty feet from the intersection; the witness was operating the oil company truck at about ten miles per hour; both trucks were traveling at about the same rate of speed; the witness thought he had the right-of-way over the packing company truck; he slowed down to see what the driver of the packing company truck was going to do and when the man on the fender raised his hand the witness thought the packing company truck was supposed to stop; the witness gave the oil company truck a little gas then the packing company truck was right onto him; nothing for the witness to do but put brakes on and try to dodge the other truck. The witness further testified: "Well, this man he looked up that way, did like that (indicating). I was looking — I looked down and up the road. When I looked back I was already hit. I gave it some more gas and when I gave him another eye he was already on me. He was as far as about the end of that table, about ten feet, if that is right, when I looked back and found him right on me. When I first saw him he was about fifty feet away, and when I looked back he was about as far as from me to that table, I think about ten feet, seemed like that. I wasn't speeding at all until I looked and saw the man motion like he was going to stop, when I looked at him I gave my truck gas just a little and looked like that (indicating from table to witness), and when I looked again he came right on to me. If I had just kept on going he would have hit me right on the side of my truck, being I slowed down and tried to dodge the truck, they would have, when I did that I just smacked them. When the collision happened, when I saw him close to me I slammed my brakes back down like that. When the truck hit my truck at the side fender and bumper it took me down the street toward the theatre, knocked my foot loose and nothing I could do. At the time of the collision my brakes were good, wasn't anything the matter with them, stopped whenever I stepped on them, they stopped. I told Chief Stegall I didn't see them after the collision. He called me up there and got my name. This other fellow, he was up there, the one that was on the opposite side of the fender, he was calling all of us asking questions, and he asked me, and the fellow that was riding on the right side of the fender he wanted to get mad at me. He asked my name, he wrote my name down. Another boy rode up in the car, and he carried me with him. He got my name. Chief Stegall didn't ask me how the collision happened, and if I told him I just didn't see the Packing Company truck I don't remember it."

Broughton Williams testified that he operated the Amoco Oil Station in Moultrie, Georgia; together with Mr. Sears, one of the defendants, he visited the scene of the collision in question in Thomasville; he backed the oil company truck involved in the collision from off the car which it hit after it collided with the Georgia Packing Company truck; the brakes were holding when witness backed it up and when he stopped it that time too; he did not have to pump the brakes to make them hold. Cross-Examination: Witness testified as to how the hydraulic brakes operated; stated that the fluid is usually low in hydraulic brakes like those on the oil truck involved in the collision; most times when one pumps such brakes and releases them, if they are not any good they will not hold the next time; at times they go down to the floor and when they are pumped they will be all right; in some cases they will stay pumped all day; the fluid is usually low when they do like that; the brakes on the oil company truck involved in the collision had plenty of fluid.

Sears, one of the defendants, testified as to the condition of the oil company truck after the collision, and the damage was practically negligible; he didn't see the oil company truck moved at all. He testified as to certain tests he had made regarding the speed of the oil company truck driven over the way that the oil company truck was being driven the day of the collision. He further testified as to certain visual tests which he made from the home of the witness Dupree. He also testified as to the size of the stop signs. The cross-examination of this witness was in effect not materially different from his direct testimony.

The defendant introduced two photographs of the truck of the Georgia Packing Company similar to the one involved in the collision, and also three photographs showing views of the intersection where the collision occurred. The defendant also introduced, without objection, certain ordinances of the City of Thomasville as pleaded in the amendment to the defendant's answer. 1. There are nine special grounds. Counsel for both parties state, and we think correctly so, that special grounds 1, 2, 3, 4, 6, 7, and 8 are based on exceptions to the charge of the court dealing with the alleged negligence of the deceased in riding on the fender of the truck of the packing company. Thus they fall into an aggregate group, which in effect is governed in a greater or lesser degree by the same legal principles. They will be discussed together in this division of the opinion. It might be well to state here these special grounds and the exceptions thereto.

Special ground 1 reads: "One who knowingly and voluntarily takes a risk of injury to his person, the danger of which is so obvious that the act of taking such risk, in and of itself, amounts to a failure to exercise ordinary care and diligence for his own safety, can not hold another liable for damages from injury thus occasioned. If a passenger on a motor vehicle voluntarily goes into a patent danger that he could reasonably avoid, he fails to exercise ordinary care, and he can not recover, and if he could not recover for an injury his widow could not recover for his death. If you find that the plaintiff's husband voluntarily went into a place of obvious danger that he could reasonably have avoided, he failed to exercise ordinary care, and the plaintiff can not recover though the defendant, Seay, may have been negligent as alleged." It is conceded that the excerpt here is not an incorrect abstract principle of law, but that it is inapplicable as to the issues and evidence in the case and therefore prejudicial to the movant for the reasons: (a) The evidence shows, without contradiction, that the deceased at the time of the collision was engaged in a necessary duty and that upon the fender was the only available place for him to ride and that his riding on the fender had no casual connection with the collision and therefore the jury was not authorized to find that the deceased had "voluntarily gone into a patent danger." (b) The fact that the deceased was riding on the fender did not represent the voluntary assumption of a patently dangerous position such as would bar a recovery. (c) That it appears without dispute that the deceased did not as "a passenger on a motor vehicle voluntarily go into a patent danger" that he could have reasonably avoided, for the deceased was carried by the operator of the packing company truck in the performance of his necessary duty, along his customary line of travel and his position on the truck was not changed until he was struck by the truck of the oil company and killed.

Special ground 2: "Under the principles I have already given you in charge, if you should find that the act of the plaintiff's husband in sitting on the fender of the truck on which he was riding, under all the facts and circumstances existing at the time, amounted to a want of ordinary care on his part for his own safety, then you would be authorized to find that the deceased was himself guilty of negligence, and if you further find that such negligence was the proximate cause of his death, then the plaintiff can not recover."

The exceptions here are that the position of the deceased on the fender could not have amounted to a want of ordinary care for his own safety approximately causing his death, for it is undisputed that so riding had no causal connection with the collision between the trucks which caused the death of the deceased.

Special ground 3: "A certain ordinance of the City of Thomasville has been introduced before you, and the defendants contend that the plaintiff's husband was violating Section 21 of the General Traffic Ordinance at the time of the injury herein sued for, and that his death was a result of his failure to comply with that ordinance. Section 21 of that ordinance reads as follows: ``It shall be unlawful for any person to ride on any vehicle upon any portion thereof not designated or intended for the use of passengers when the vehicle is in motion. This provision shall not apply to an employee engaged in the necessary discharge of a duty, or within truck bodies in space intended for merchandise.' If you find that the plaintiff's husband in riding on the fender of the truck was not engaged in the necessary discharge of a duty, he was violating the provisions of that section of the ordinance.

"It would be negligence as a matter of law for the plaintiff's husband to violate the provisions of this ordinance. If the plaintiff's husband was negligent in this respect, and if such negligence amounted to a lack of such care for his own safety as an ordinarily prudent man would have taken, then the plaintiff can not recover even though you find that Joe Seay was negligent as alleged in the petition."

(a) This excerpt was inapplicable to the facts of the case for the ordinance provided it should "not apply to an employee engaged in the necessary discharge of a duty," for the evidence did not reveal that the deceased was not an employee at the time of the collision engaged in the discharge of his duty, but the evidence showed the contrary.

(b) That the evidence shows that there was no causal connection between the deceased on the truck and the collision resulting in his death; that the jury were not authorized to find that such position assumed by the deceased could amount to a want or ordinary care barring a recovery or that such position was any contribution whatever to the collision between the trucks which was the proximate cause of the death of the deceased.

(c) The position of the deceased on the truck, having no causal connection with the collision, could not, as a matter of law, operate to relieve the defendants of the responsibility for negligent conduct resulting in the death of the deceased.

Special ground 4: "If you believe that the death of plaintiff's husband was the natural and probable consequence of his riding on the fender of the truck which would have been foreseen or reasonably anticipated by an ordinarily prudent person in the exercise of due care and caution for his own safety, under the circumstances, then such conduct of the deceased may be found by you to be the proximate cause of his death, in which event the plaintiff can not recover."

The exceptions to this excerpt from the charge are to the effect that the charge was inapplicable to the facts because there was no causal connection between the deceased's position on the fender of the truck and the collision of the two trucks and that the jury were not authorized to find, under the evidence, that the death of the deceased was the natural and probable consequences of his riding on the fender nor did the jury have authority to find that the collision which resulted in the death of the deceased "would have been foreseen or reasonably anticipated by an ordinarily prudent person in the exercise of ordinary care and due caution for his own safety" nor would the jury be authorized to find that the position of the deceased on the fender was the "proximate cause of his death." This is true regardless of whether the proximate cause of the collision of the trucks resulting in the death of the deceased was the negligence of the operator of the oil company truck or the negligence of the packing company truck, or the concurring negligence of both.

Special ground 6: "If the plaintiff's husband was violating a municipal ordinance regulating the use of a motor vehicle, he was bound to anticipate that others, like he had done, might violate a municipal traffic ordinance, and it was incumbent upon him to guard not only against negligence on the part of others which he might discover in time to avoid the consequences, but also against the ordinary danger of there being negligence which he might not discover until too late for him to avoid it."

Error is assigned on this excerpt (a) because a third person was driving the packing company truck; that the deceased was not using the same and had no control over it; (b) that the evidence does not show that the deceased had violated any municipal ordinance; (c) that if he had violated such ordinance such violation had no causal connection with the collision of the trucks; (d) that it was confusing and misleading to the jury and it tended to lead the jury to believe that the deceased was chargeable with the conduct of the driver of the packing company truck as a passenger on the fender and thereby put on the deceased the duty to be on the lookout and guard against the danger of the acts of negligence of the operator of the oil company truck.

Special ground 7: "If the jury should find that the degree of the deceased's negligence contributing to his injury was equal to or greater than the degree of the defendant's negligence, the plaintiff would not be entitled to recover."

The exceptions are here that since the defendant contended that the negligence of the drivers of the oil company truck and the packing company truck concurred as the proximate cause of the injury that the plaintiff would still be entitled to recover even if the negligence of the deceased equaled or even exceeded that of the defendant but was still less than the aggregate combined negligence of both tort-feasors; and the court failed to charge to this effect. It is contended that this contention is especially true since the evidence did not involve a causal connection between the alleged passive negligence of the deceased in his position on the fender of the truck and the collision between the trucks. It is here contended also that the court repeated this erroneous instruction after the jury had deliberated for some time and returned into court and asked for further instruction on "where both parties are to blame," in response to which query from the jury the court, without inquiring as to what persons they referred to as parties, that is, whether they referred to the operator of the oil truck and the alleged third party tort-feasor, operator of the packing company truck, or whether they referred to the defendant driver of the oil company truck and the deceased; and that the said erroneous charge in this special ground was thus repeated as the last and final instruction to the jury, thereby emphasizing the alleged error and aggravating the prejudice resulting to the plaintiff therefrom.

Special ground 8: "It is a rule of law that, when a wrongful act puts other forces in operation which are natural and which the act would reasonably and probably put in action, the party who puts in force the first efficient cause would be responsible for the injury proven. In other words, if you find that the direct and proximate cause of plaintiff's husband's being killed was produced by the plaintiff's husband or by the driver of the truck of the Georgia Packing Company or by a combination of the acts of both of them and not by the defendant, Joe Seay, the mere fact, if you find it to be a fact, that the plaintiff's husband was killed by the truck of the defendant, George Sears, would not create any liability in this case against the defendants, or any of them. And if there is no liability against the defendants, the mere fact that the plaintiff's husband was killed would not authorize you, in law, or in morals, to find a verdict in favor of the plaintiff."

It is contended that this excerpt from the charge was unauthorized by either the pleadings or the evidence; that the defendants did not contend that the deceased was guilty of any wrongful act that put any forces in operation. The situation of the deceased was purely passive and inactive and the said excerpt was particularly prejudicial when coupled with the language "the mere fact that the plaintiff's husband was killed would not authorize you, in law or in morals, to find a verdict in favor of the plaintiff."

(a) In discussing the foregoing assignments of error, we think it pertinent in the outset for us to state the principles of law as embodied in the Code and involved in decisions relating to negligence under the sort of case under consideration here.

Code § 105-603 reads: "Diligence of Plaintiff. If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover. In other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained."

Section 94-703 reads: "Consent or negligence of person injured as defense; Comparative negligence as affecting amount of recovery. No person shall recover damages from a railroad company for injury to himself or his property, where the same is done by his consent or is caused by his own negligence. If the complainant and the agents of the company are both at fault, the former may recover, but the damages shall be diminished by the jury in proportion to the amount of fault attributable to him."

These sections first appeared in the Code of 1861. They are a codification of the rules adopted by our Supreme Court in certain decisions rendered prior to 1861. The decisions included Volume 31 of the Georgia Reports. In Macon Western R. Co. v.Johnson, 38 Ga. 409, 432, decided in 1868, the court said: "The common-law rule was that however negligent the defendant may have been, yet, if the negligence of the plaintiff contributed to the injury of the plaintiff, he was without remedy. There could be at common law no apportionment of damages." In Macon Western R. Co. v. Johnson, supra (432), Justice McCay said, with reference to the Code sections above referred to, "And it seems to us, that the Code thus happily settles a subject upon which there has been some conflict of opinion, and no little display of learning and argument." Reverting for a moment, in the case of Butterfield v. Forrester, 11 East 60, the court laid down the rule of contributory negligence, — that is, that if the plaintiff was negligent at all, he could not recover. Then thereafter, the famous donkey case arose, Davis v. Mann, 10 Meeson and Wilsby, p. 560, in which the court announced the rule of the last clear chance. This rule is to the effect that the contributory negligence of a plaintiff will not bar him of a recovery if it is shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the plaintiff's negligence. This rule was limited by a proviso, however, that it does not also appear that the plaintiff, by the exercise of like care, could have avoided the consequences of the defendant's negligence, after the negligence of the defendant had begun and was apparent. So, according to that rule, the party who had the last clear chance or opportunity of avoiding a negligent act, is considered solely responsible therefor. After the decision in the "donkey" case, the rule of the "last clear chance" became a part of the doctrine of contributory negligence. The negligence of either party in failing to exercise ordinary care and prudence to avoid the consequences of the other's negligence was regarded as the proximate cause. Under this doctrine no comparison of negligence was involved. In this connection it might be well to call attention to the case ofMacon Indian Springs St. Ry. Co. v. Holmes, 103 Ga. 655 (30 S.E. 563).

(b) Prior to the Code of 1861, the first case in Georgia involving the law of negligence which resulted in personal injuries will be found in Macon Western R. Co. v. Davis,13 Ga. 68. This case grew out of an accident at a public crossing in Monroe County in December, 1851. This same case appears five times in the Supreme Court Reports, first in 13 Ga. 68 (supra), next in 18 Ga. 679, then in 19 Ga. 440, followed by 26 Ga. 250, and finally in 27 Ga. 113. These cases of our Supreme Court involve every rule of the law of negligence, including contributory negligence and the last clear chance. The doctrine of contributory negligence in the Butterfield v. Forrester case, supra, had been modified by the doctrine of the last clear chance laid down in the "donkey" case, Davis v. Mann, supra. It is generally understood that the doctrine of comparative negligence "divides itself into three degrees, described by slight, ordinary and gross." 20 Rawle C. L. 146. Such is not the rule in Georgia, in the sort of actions as in the instant case. The doctrine has been extended. Juries are required to distinguish between lesser degrees of ordinary negligence. Under our rule, the plaintiff is entitled to recover unless his negligence is equal to or greater than the negligence of the defendant. This is true where both parties are guilty of only ordinary negligence, and where the negligence of both concurs as the sole proximate cause. This was the rule announced in Flanders v. Meath, 27 Ga. 358. In that case it was held that the plaintiff was entitled to recover if "both parties" were at fault but the defendant slightly more so. This established the rule of comparative negligence as embodied in the Code of 1861, so far as it relates to questions of liability. Under the doctrine of the last clear chance, under the common law, the negligence of the defendant in failing to use ordinary care to avoid the consequences of the plaintiff's negligence, was regarded as the proximate cause of the injury and full damages were allowed notwithstanding the prior negligence of the plaintiff. At one time this was the rule of our court. Macon Western R. Co. v. Davis, 27 Ga. 113. In that case the court said: "He who is guilty of greater negligence or wrong must be considered the original aggressor and accountable accordingly." The doctrine of the apportionment of damages had an independent origin from the rule of comparative negligence which we have heretofore been discussing. We will look into the rule of apportionment of damages. The first suggestion that damages ought to be apportioned was made in the case of Macon Western R.Co. v. Wynne, 26 Ga. 250 (supra), and again in Macon Western R. Co. v. Davis, 27 Ga. 113. In those decisions the court was composed of Judge Lumpkin, Judge McDonald and Judge Benning. In reading those last two cases it will be observed that the judges were not in accord as to the apportionment of damages. But later, in the case of Flanders v. Meath, supra, the same judges, Judge Lumpkin writing the opinion, agreed on the rule of apportionment of damages as it now exists. The rule of apportionment of damages was reaffirmed in the case of Yonge v.Kinney, 28 Ga. 111. In that case the court said: "If the person who is injured is himself culpable . . . the damages, if any, should not be as large as if he had been free of fault. We will not undertake to say how much such conduct ought to reduce the recovery, but will say that it ought to reduce it much." This was the last decision on the question of apportionment of damages prior to the adoption of the Code of 1861. It will thus be seen that the doctrine of contributory negligence under the common law and that doctrine as modified by the rule of the last clear chance under the common law, have no place in our rule of comparative negligence and apportionment of damages under our Code sections as such. Such doctrine or rule of contributory negligence and the rule of the last clear chance are involved in and vanish as such into our principle of comparative negligence and apportionment of damages. They are involved to some extent in our principles, but they vanish as they were known and operative under the common law. 20 R.C.L. 146, says: "The great majority of courts . . repudiate the doctrine of comparative negligence." The doctrine of comparative negligence and apportionment of damages obtains in Georgia. Contributory negligence, when used in our Code or decisions with reference to negligence, has a different meaning from contributory negligence as known to the common law. It seems that the combination of our law of comparative negligence and the apportionment of damages is unique, taking on a combination of the common law of England and the civil law of Rome. Without going into details as to the distinctiveness of our rule, it is really not an apportionment of damages as compared to the negligence of both parties, for it does not apportion the damages beyond the point where the negligence of both parties are equal, or that of the plaintiff, greater, than the negligence of the defendant.

(c) We are not here dealing with, and we are not unmindful of certain statutory provisions, applicable to situations in cases unlike the one before us, — for instance, the degree of diligence which a common carrier owes to passengers, the rule applicable to diligence of bailors and bailees, and also the law applicable under the Workmen's Compensation Act (which does not involve negligence at all even though negligence be involved by either one or both the parties), and other statutory provisions standing upon like footing. What we have said here and will say afterwards herein applies only to that great number of cases which arise under what is known as general negligence between the parties with reference to the exercise or the failure to exercise ordinary care. From our investigation we feel that we should here state certain well-established rules of law which will be helpful in reaching a correct decision in this case under its pleadings and facts, and other similar cases.

(1) If the negligence of the plaintiff equals or exceeds that of the defendant, a recovery can not be had by the plaintiff.

(2) If the plaintiff is negligent in a lesser degree than the defendant, a recovery may be had.

(3) If the plaintiff is negligent, in a lesser degree than the defendant, there may be a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to the plaintiff.

(4) Under the Georgia comparative negligence rule, the negligence of both the plaintiff and the defendant must concur to proximately cause the injury or damage.

(5) If the injury or damage is occasioned by the failure of the plaintiff to exercise ordinary care for his own safety, he can not recover.

(6) Even though the defendant is negligent, if the plaintiff could have, by the exercise of ordinary care, avoided the consequences of the defendant's negligence or if the plaintiff could have, by the exercise of ordinary care, have discovered and avoided the negligence of the defendant, he can not recover.

(7) The duty of the plaintiff to exercise ordinary care to avoid the consequences of the defendant's negligence does not arise until the negligence of the defendant becomes known to the plaintiff or by the exercise of ordinary care should have been known to him.

(8) The plaintiff is not held accountable for negligent acts on his part for those acts of negligence on the part of the defendant which could not have been reasonably anticipated by the plaintiff, and vice versa.

(9) It is generally a question for a fact-finding body to determine questions of negligence and whose negligence and what negligence involved is the sole proximate cause of the injury. It is only where the negligent conduct alleged is susceptible of but one inference that it becomes a question of law for the court to determine.

2. (a) Special ground 1: In studying these assignments on the excerpts from the charge of the court, we must consider the charge as a whole. It is not contended that the excerpt on which error is assigned is not correct as an abstract principle of law, but it is contended that it was not authorized by the evidence and law applicable to the instant case. Immediately preceding the excerpt, the court charged: "However, I charge you in this same connection that if by the exercise of ordinary care the deceased could have avoided the injury to himself, the plaintiff can not recover, even though you find the defendant was negligent as alleged." And immediately after the excerpt complained of, the court charged: "The duty to exercise ordinary care to avoid the consequences of the other's negligence does not arise until the injured party knew or in the exercise of ordinary care ought to have known of the other's negligence. If, however, the deceased did not know or in the exercise of ordinary care could not have known of the negligence, if any, of the defendant, then there would be no such duty to avoid the consequences of the defendant's negligence, if you find that the defendant was negligent in some way alleged." In Hennemier v. Morris,48 Ga. App. 840 (173 S.E. 924), the court held: "The operator of a motorcycle has the right to assume that the operator of an automobile will obey a municipal ordinance prohibiting any motor vehicle from being driven over a ``stop' sign, at the intersection of two streets, until after the vehicle is brought to a full stop; and the driver of the motorcycle is not guilty of a want of ordinary care or of contributory negligence in acting on such assumption, unless the circumstances are such as to warn him that the operator of the automobile will probably fail to obey the ordinance. And whether the circumstances are sufficient for such warning is generally a question for the jury."

In the case of Whatley v. Henry, 65 Ga. App. 668, 674 (16 S.E.2d 214), this court said: "Before considering this assignment it would be well to observe that there are two classifications of negligence as to the plaintiff, contributory and comparative. Contributory negligence is of two separable, distinct defenses (Savannah Electric Co. v. Jackson,132 Ga. 559, 562, 64 S.E. 680; Savannah, Florida Western Ry. v. Stewart, 71 Ga. 427 (2)): first the plaintiff must at all times use ordinary care for his own safety; that is, he must not by his own negligence (or consent) proximately cause his own injuries; and second, the plaintiff must use ordinary care to avoid the consequences of the defendant's negligence when it is apparent or when in the exercise of ordinary care it should become apparent. Either or both of these defenses go in bar of the right of recovery. Comparative negligence by the plaintiff is that negligence which joins with the negligence of the defendant in proximately causing the injuries of the plaintiff and goes in reduction of theamount of recovery in proportion that the negligence of the plaintiff compares with that of the defendant. Comparative negligence is applicable only when the jury has not found either the negligence of the plaintiff or that of the defendant to be the sole proximate cause." It will thus be seen, when we consider the excerpt in its proper setting, under the evidence in the instant case, that it is not subject to the criticism made. It was a jury question as to whether the deceased in riding on the fender of the car, was in the exercise of ordinary care for his own safety. The law required of him that he must not, by his own negligence or consent, proximately cause his own injuries. And further, the plaintiff must use ordinary care to avoid the consequences of the defendant's negligence when it is apparent or in the exercise of ordinary care it should become apparent. Either or both of these, if proved, would bar the plaintiff from recovering. Under the evidence it seems to us that the jury were authorized to find against the plaintiff. At least we think that the evidence authorized the jury to find that the negligence of the deceased, in this respect, was equal to if not greater than that of the defendant in a corresponding effect. We are not here considering the rule of comparative negligence. That doctrine, under our law, is applicable only when the jury has not found either the negligence of the plaintiff (deceased) or that of the defendant to be the sole proximate cause. In our opinion the instant case is controlled in principle by the decision of this court in Taylor v. Morgan, 54 Ga. App. 426 (188 S.E. 44). The court said: "1. One riding on the running-board of an automobile is not necessarily negligent; although he may be found negligent if there was no reason for his assuming such a position. In such a case the question of negligence is ordinarily for the determination of the jury. 2. A person who voluntarily rides on the left-side running-board of an automobile on a dusty road, in such a position that his body protrudes beyond the car, and by reason of such fact he is struck by a passing car which itself may be violating the rules of the road, is guilty of such a lack of ordinary care to avoid the consequences of the negligence of drivers of other vehicles as will preclude a recovery by him of injuries received in such a manner. ``A person who voluntarily assumes a position of imminent danger when there is at hand and accessible to him a place of safety, and by reason of having assumed such dangerous position he is injured, can not recover against another who is also negligent. Such conduct amounts to the lack of ordinary care.'"

It is contended by able counsel for the plaintiff that the court held that the deceased in that case was grossly negligent and that the deceased in the instant case could not be said to have been grossly negligent. We do not think the decision in that case turned upon this question at all. It is true that the court in that opinion held that the negligence of the deceased was so obviously the cause of his death that the court was bound as a matter of law to hold that the plaintiff was not entitled to recover. The extent of the holding, however, was that the deceased in that case was guilty of such want of care as to bar a recovery. The deceased in that case was riding on the running board, in a stooping position, with the back portion of his body protruding from the outer lines of the car. He was riding on the left side of the car. He was struck and killed while thus riding, by a car meeting the car on which the deceased was riding. The driver of the car which struck the deceased in that case was violating the law by driving on the left side of the center of the road. The jury returned a verdict for the plaintiff who was the widow of the deceased. This court reversed the judgment on the ground that the negligence of the deceased in assuming the position that he did on the car was such negligence as would bar a recovery. Without discussing in detail the similarity of the evidence in this case and in that case, we might say that we are unwilling to hold that one who assumes a position by riding on the left fender of a truck, as the deceased was doing in the instant case, crossing intersections of a much used street, is not also guilty of such negligence as would bar a recovery for his death. At least we think it was a jury question. The jury decided the issue against the plaintiff. From the evidence it appears in the instant case, that the deceased had no way of holding himself upon the fender. The similarity of the situation in the instant case and inTaylor v. Morgan, supra, is striking. It will be noted also that in the Taylor case the defendant was negligent per se and the jury so found. In the instant case, under the evidence, the jury were authorized to find that the deceased was violating a city ordinance in so riding on the fender, and the defendant was not negligent per se. Counsel for the plaintiff contends enthusiastically that the negligence of the deceased in the instant case, was passive and not active; that his riding on the left fender of the truck had no causal connection with the proximate cause of the injury. We might here state that "causal relation is one of fact; and it is always one for determination by a jury except when facts are such that they will support only one reasonable inference. Green's Proximate Cause, p. 132. There must be no reasonable grounds for two opinions." Letton v.Kitchens, 166 Ga. 125 (142 S.E. 658). Also, in Southern Ry.Co. v. Hogan, 131 Ga. 157 (1) (62 S.E. 64), the court said: "One who knowingly and voluntarily takes a risk of injury to his person and property, the danger of which is so obvious that the act of taking such risk, in and of itself, amounts to a failure to exercise ordinary care and diligence for his own safety and that of his property, can not hold another liable for damages from injuries thus occasioned." In Western Atlantic R. Co. v.Ferguson, 113 Ga. 708, 713 (39 S.E. 306, 54 L.R.A. 802), the Supreme Court said: "If there is anything present at the time and place of the injury which would cause an ordinarily prudent person to reasonably apprehend the probability, even if not the possibility, of danger to him in doing an act which he is about to perform, then he must take such steps as an ordinarily prudent person would take to ascertain whether such danger exists, as well as to avoid the consequences of the same after its existence is ascertained; and if he fails to do this, and is injured, he will not be allowed to recover, if by taking proper precautions he could have avoided the consequences of the negligence of the person inflicting the injury." Counsel for the plaintiff call our attention toWhitaker v. James, MacDougald, Smith, Pew Co., 69 Ga. App. 711 (26 S.E.2d 545), and Dunbar v. Davis, 32 Ga. App. 192 (122 S.E. 895). We do not think that there is anything in those cases contrary to what we here hold. Counsel also call attention to numerous decisions from other States, as well as 45 C. J. 988, paragraph 540; 38 Am. Jur. 896-899, paragraphs 212, 213. Notwithstanding what is said in those authorities, it seems that our courts have settled the question insofar as this State is concerned.

Special ground 2: In addition to the excerpt set forth in this special ground, the court further charged in this connection: "The law does not forbid a person under any and all circumstances to ride on fenders of trucks and the question of whether or not the plaintiff's husband was violating this ordinance and whether it was negligence on his part to be seated on the fender of the truck on which he was riding at the time of his death is a question for the jury alone to determine after considering all the facts and circumstances of the case. In determining this question, that is, whether it was or was not negligence on the part of the deceased to be in the position occupied by him, you may consider the exact work or task in which he was engaged, and whether in this connection it was essential for him to travel from one post to another and whether in that connection it was essential for him to be in that position, whether there was or not another safer place where he could have ridden which was then accessible and available to him. You may also consider the type of road on which he traveled, the speed at which these trips were customarily made, the skill or care, or the lack thereof, possessed and used by the driver on previous trips and similar missions insofar as these things may legitimately appear from the evidence in this case. On this question the court neither entertains nor expresses any opinion whatever, but instructs you, as already stated, that this is a question of fact for you to determine.

"The court instructs you that the deceased in riding on the packing company truck, assumed the risks inherent in and ordinarily attendant upon riding in such position, but he did not assume the risk of a collision due to the defendant's negligence, if any, and of death resulting therefrom. Although the deceased by allowing his person to be exposed to danger, if you find that such position was dangerous, took upon himself the risk of loss or injury by mere accident, he did not thereby discharge the defendant from the duty of observing ordinary care and prudence.

"If you should find, under all the facts and circumstances of the case, that the presence of the deceased on the fender of the truck did not constitute negligence, then you will drop your inquiry as to this phase of the case; on the other hand, if you find that such conduct did constitute negligence, it would then be your duty to go one step further and determine whether such negligence and conduct proximately caused the death of plaintiff's husband."

What we have said in special ground 1 is applicable to special ground 2 also, notwithstanding decisions from other jurisdictions called to our attention by the attorney for the plaintiff.

(b) Special ground 3: The objection urged in this ground is to the effect that under the evidence it was necessary for the deceased to assume the position on the fender of the truck and to remain in that position until the collision occurred, for he was in the discharge of his duties and under the provisions of the ordinance in the discharge of such duties it was necessary for the deceased to ride as he did on the left fender of the truck. Besides this, it is contended that the plaintiff is not barred of recovery for an injury suffered by negligence on his part because of the violation of the ordinance by him, for the reason that if the deceased violated the statute, such violation by him had no causal connection with the collision which resulted in his death. The reason we set out the pleadings and the evidence in unusual detail was because we thought that better than to enter into a detailed discussion of the law applicable to the many points raised and discussed in the pleadings and the brief of able counsel for both parties. A reading of the evidence to our mind will disclose that whether it was necessary for the deceased to ride on the left fender of the truck, and whether his doing so had any causal connection with the injury which he received are jury questions and are not questions of law. And the cases cited by distinguished counsel for the plaintiff do not require a reversal of the case under the statutes and decisions of our State. Counsel for the plaintiff in error cite Platt v.Southern Photo Material Co., 4 Ga. App. 159 (60 S.E. 1068),Huckabee v. Grace, 48 Ga. App. 621 (173 S.E. 744), 45 C. J. 972-975, paragraph 528, 38 Am. Jur. 899, paragraph 214, Hughes v. Atlanta Steel Co.,136 Ga. 511 (71 S.E. 728, 36 L.R.A. (N.S.) 547, Ann. Cas. 1912C, 394), and Rome R. Co. v. Thompson, 101 Ga. 26 (28 S.E. 429). The facts in the instant case differentiate it from the facts in the Georgia cases to which our attention is called. As to whether it was necessary for the deceased to ride on the left fender of the truck, under the record in this case, was a jury question. In construing the word "necessary" in the ordinance, the ordinary signification of that word should be applied to it under our Code, § 102-202. This rule of construction applies to ordinances as well as to statutes of our State. Snow v.Johnston, 197 Ga. 146 (28 S.E.2d 270). We find no reversible error in this special ground.

(c) The excerpt from the charge in special ground 4 sets forth only a part of a sentence. To get the full import of the court's charge in this connection, we deem it essential to set forth the entire sentence. Besides, we should look to the entire charge, and the whole evidence, in order to determine whether the assignment of error requires a reversal. The excerpt we will put in parenthesis, and follow immediately thereafter the remainder of the sentence.

"(If you believe that the death of plaintiff's husband was the natural and probable consequence of his riding on the fender of the truck which would have been foreseen or reasonably anticipated by an ordinarily prudent person in the exercise of due care and caution for his own safety, under the circumstances, then such conduct of the deceased may be found by you to be the proximate cause of his death, in which event the plaintiff can not recover), on the other hand, if you find that his death was not the natural and probable consequence of his riding on the fender of the truck, but that that was only a condition or attendant circumstance of the injury, in other words, a remote cause thereof, and if you further find, in that connection, that at the immediate time and place of the collision in question the defendant Seay was negligent, as alleged in the plaintiff's petition, and that such negligence then and there intervened and directly and immediately brought about the injury and death of the plaintiff's husband, then if you find that to be true, and that the deceased Cecil Smith could not have avoided, by the exercise of ordinary care, the consequences to himself of the defendant's negligence, after it became known or should have been discovered by him, you would find that such negligence of the defendant Seay was the proximate cause of the death of the decedent and the plaintiff would be entitled to recover." We call attention, in this connection, to Loudermilk v. State,41 Ga. App. 286 (152 S.E. 593); Howard v. Macon Ry. LightCo., 17 Ga. App. 55 (86 S.E. 256). In Williams v. Grier,196 Ga. 327, 337 (26 S.E.2d 698), the court said: In order for a party to be held liable for negligence, it is not necessary that he should have been able to anticipate the particular consequences which ensued, it is sufficient, if in ordinary prudence he might have foreseen that some injuries would result from his act or omission and that consequences of a generally injurious nature might result. The assignment of error in this ground does not require a reversal.

(d) Special ground 6: The assignment of error in this special ground is to the effect that the court erred in charging the jury that if the deceased was violating a municipal ordinance in riding on the left fender of the truck, he was bound to anticipate that others, like himself, might violate a traffic ordinance and that in so riding it was incumbent upon the deceased to guard, not only against negligence on the part of others, which he might discover in time to avoid the consequences, but also against the ordinary danger of there being negligence which he might not discover until too late for the deceased to avoid such negligence. Under the pleadings and evidence in this case, we think this was a statement of a correct principle of law and was adjusted to the evidence as set forth herein, as well as in Taylor v. Morgan, supra, and inWilliams v. Grier, supra. On this question the Supreme Court in Williams v. Grier (page 338), said: "The defendants further insist, however, that the petition shows upon its face that the negro driver, in approaching the intersection ``at a very high rate of speed,' was himself guilty of a criminal act, and that such violation of the law on his part was something that was not reasonably to be anticipated. See Code §§ 68-301, 68-303 (i), 68-9908. But the defendants themselves were violating a municipal ordinance; and this being true, it was incumbent upon them to anticipate that others, like themselves, might disobey the traffic laws and regulations." (The writer might add here, if it could be of any consolation to counsel for the plaintiff, that he wrote the case of Williams v. Grier in this court and at the time held to the view which attorneys for the plaintiff now hold and contend, but the Supreme Court took a different view from the writer and reversed the case, therefore the Supreme Court decision placed the writer and distinguished counsel for the plaintiff as entertaining the same view, but without authority to enforce it. This court is bound by the decision of the Supreme Court, and counsel for the plaintiff will have to go along with us.) Therefore we are without authority to reverse the case on the assignment of error in this ground. For the evidence in the instant case authorized this charge equally as much as the allegations warranted such principle under the alleged facts of the Williams case. There is nothing to the contrary inMinnick v. Jackson, 64 Ga. App. 554 (13 S.E.2d 891), on which counsel for the plaintiff rely.

(e) Special ground 7: The effect of the assignment of error in this ground is that the court erred in charging that if the degree of negligence of the deceased which resulted in his injury was equal to or greater than the degree of the defendant's negligence, the plaintiff could not recover. This contention is based on the principle that in so charging the court overlooked the fact that the plaintiff contended that the negligent operation of the truck driver of the packing company truck (although not a party defendant) concurred with the negligent acts of the defendant Seay, operator of the oil company truck, as the proximate cause of the collision which resulted in the death of the deceased and that the evidence warranted this contention. Therefore the excerpt in this ground was error because the plaintiff would be entitled to recover if the aggregate negligence of the drivers of both trucks exceeded the negligence of the deceased. In addition to the excerpt set out in this special ground on the question now under consideration, the court charged: "On the other hand, the court instructs you that if an injury or death results from separate negligent acts of different persons, such wrongdoers whose negligence concurred in and contributed to the injuries, may be sued separately or together. And in this connection the court instructs you that even if you find that the said Calvin House was negligent in the operation of the packing company truck at the time and place of the collision, and that such negligence proximately contributed to the death of the deceased, but if you also find that the defendant Seay was negligent in any one or more of the particulars alleged by the plaintiff in her petition, and that such negligence likewise contributed to and proximately caused the death of the plaintiff's husband, in other words, if you should find that the separate negligent acts of the said House and the defendant Seay concurred in and contributed to the death of the plaintiff's husband, as the proximate cause thereof, the plaintiff would nevertheless be entitled to recover against the defendant Seay, notwithstanding the fact that no action is brought against the said House and without any reduction in the amount of the damages to which you may otherwise find she is entitled by reason of any contribution which the negligence of the said House may have made to the death of the plaintiff's husband, provided you also find that the deceased himself was not lacking in ordinary care and diligence for his own safety and could not, in the exercise of such care, have avoided the consequences to himself of such concurring separate negligent acts after the discovery thereof or after he, in the exercise of ordinary care, should have discovered the same." This court inMishoe v. Davis, 64 Ga. App. 700 (14 S.E.2d 187), had before it this identical question. It was there held that the assignment of error similar to the one here, was not error. We think that it is well settled that where the acts of negligence of two or more tort-feasors concur as the proximate cause of an injury, the party aggrieved may sue either one or all of the joint tort-feasors. Where recovery is sought against only one of them, the law seems to be that the plaintiff is entitled to a recovery unless the negligence of the plaintiff equals to or exceeds that of the tort-feasor against whom the action is instituted. In such a situation it is not proper for the court to charge that the plaintiff would not be entitled to recover if the negligence of the plaintiff equaled to or exceeded the combined negligence of the joint tort feasors. In this connection counsel for the plaintiff call our attention to Kelly v. Locke,186 Ga. 623 (198 S.E. 754). In reading that decision, in the charge therein we discern quite a distinction between that charge and the charge in the instant case. It will be observed that in Kelly v. Locke, supra, the trial court in its instruction in effect required the jury to find that either the negligence of one tort-feasor or the other was the proximate cause of the injury and prevented the jury from finding, as they might have done, that the concurrent negligence of both tort-feasors was the proximate cause of the injury. The trial court in the instant case did not, as we see it, commit that error. It seems to us that the true rule, in the instant case, is that (and it is supported by the pleadings and the evidence and the charge) no plaintiff is entitled to a judgment against a tort-feasor to whose negligence the plaintiff's is equal. Mishoe v. Davis, supra. This ground does not require a reversal.

(f) Special ground 8: Under a proper construction, when we view the excerpt in the light of the whole charge and the evidence in the case, and when we construe the evidence most favorably to sustain the verdict, which we are required to do, we do not think the excerpt is susceptible of the construction placed upon it by the plaintiff. That construction is that the effect of the charge was to instruct the jury that the deceased negligently put the forces in operation which naturally and reasonably and probably were the efficient causes of the collision which caused the injury. While the court did not say that if such forces were put into operation by either the deceased or the driver of the packing company truck or by a combination of the acts of both of them, etc., it must be remembered in this connection that the evidence sustains the proposition that the deceased did hold up his hand when he saw the oil truck approaching, and we think in this connection the jury were authorized to find, and it was so contended by the defendants, that this signal by the deceased was for the truck of the packing company to stop and the oil company truck to proceed across the intersection. It is not contended that the excerpt complained of in this connection is not true as an abstract principle of law. We call attention to Edwards v. State,63 Ga. App. 212 (10 S.E.2d 449). In looking to the whole charge and the other parts of the record in the case, we find no reversible error in this ground.

(g) Special ground 5: Following the arrangements of the argument of counsel, we here revert to special ground 5. Since we did not heretofore quote the exceptions to the charge as contained in this ground, we will now do so.

"Now, gentlemen of the jury, the defendants charge by way of an amendment to their answer that at the time and place in question there was of force in the City of Thomasville a valid municipal ordinance regulating the use of motor vehicles in said city as follows: ``That at the intersection of Crawford Street with Jefferson Street, Crawford Street is hereby made and declared to be a through street, and every operator of a vehicle or other conveyance traversing Crawford Street from Jefferson Street shall bring such vehicle or conveyance to a full stop at the place where such street meets the prolongation of the property line of Crawford Street.' They further allege that the driver of the truck of the Georgia Packing Company on which the plaintiff's husband was riding, violated such ordinance in driving into Crawford Street without bringing to a full stop at the place where Jefferson Street meets the prolongation of the property line of Crawford Street the truck of the Georgia Packing Company which he was driving; that such violation was negligence per se and the proximate cause of the injury and damage sued for.

"The defendants further in said amendment alleged that there was in force in the City of Thomasville at said time a valid municipal ordinance regulating the use of motor vehicles in said city as follows: ``The operator of a motor vehicle upon coming to a street intersection which is a stop street, and is so marked, shall not cross said stop line until he has brought his motor vehicle to a complete standstill regardless of the direction in which he intends to turn.'

"The defendant further alleges that House, the driver of the packing company truck, violated said ordinance by crossing the stop line at Crawford Street, Jefferson Street being a stop street and so marked, before he brought his motor vehicle to a complete standstill; that such violation was negligence per se and was the proximate cause of the injury and damage sued for.

"Now, on the other hand, gentlemen of the jury, the plaintiff contends that these ordinances to which the court has just referred were not enforceable, and, therefore, were not violated by the said House because the same ordinance of the City of Thomasville, as amended, further provides that ``No provision of this ordinance for which signs are required shall be enforceable against an alleged violator, if, at the time and place of the alleged violation, any sign herein required is not in proper position and sufficiently legible to be seen by an ordinarily observant person.' And it further provides that ``The police department is hereby authorized to place and maintain, or cause to be placed and maintained, on each and every street intersection of a through street designated herein, and at or near the property line of the through street, appropriate signs upon the street (in addition thereto may place and maintain any appropriate device or marks in the roadway) such signs, devices or marks to bear the word ``stop' and to be located in such position and to be provided with letters of a size to be clearly legible from a distance of at least one hundred feet along the street intersecting the through street.' And the plaintiff further contends, in this connection, that the alleged through street was not marked in according [accordance] with the provisions of said ordinance in that it was not marked at or near the property line by appropriate signs, upon the street, such sign bearing the word ``stop' and located in such position and provided with letters of a size to be clearly legible from a distance of at least one hundred feet along the street intersecting the through street, and in that no sign had been erected, sufficiently legible to be seen by an ordinary observant person as thus required.

"Now, gentlemen of the jury, you look to the evidence and to the ordinances that have been introduced in evidence to determine what, if anything, are the conditions of their enforceability, and whether or not when the entire ordinance has been properly considered by you, the said House was guilty or not of violating the provisions of said ordinance he would be guilty of negligence as a matter of law. On the other hand, if you find that he was not guilty of violating such provisions, he would not be guilty of negligence as a matter of law."

It will be observed that these assignments of error refer to certain ordinances of the City of Thomasville. The assignments of error based on this excerpt of the charge in this ground embrace approximately nine pages of the record and a number of pages of the brief of both parties. It will be impractical for us to discuss in detail the issues raised here. The ordinances were pleaded defensively. They were introduced without objection. They were referred to in the evidence by the witnesses directly and indirectly, we might say in a voluminous way. Then too, there appears in the evidence photographs of the stop sign and the overhead signal and the location of the streets forming the intersection and the intersection. After much study of the record of the evidence, we find many conflicts, as to whether the provisions of the ordinances were being enforced, and as to the intention of the authorities of the City of Thomasville as to the extent in which they were to apply in an operative manner concerning this intersection. We conclude, however, that inasmuch as the substance of the ordinances were pleaded defensively and were introduced without objection, the charge excepted to concerning them shows no cause for reversal. From the excerpt it will be discerned that the court's charge was a favorable to one side as to the other, and we do not think prejudicial to either. It must also be kept in mind that in the pleadings and in the evidence there was a commingling of statutory and common-law negligence (and we do not use this phrase in disparagement of the able contest made for both parties by their counsel regarding their respective contentions). But we simply mean to say that in such an action it is permissible in the pleadings and in the evidence, as was done here, to include both acts of negligence per se and negligence under the common law. For "ordinances and statutes imposing specific duties do not disturb the common law rules as to diligence and negligence." Williams v. Grier, supra. In our opinion the assignments under this ground do not require a reversal notwithstanding the citation of counsel for the plaintiff to the contrary. That citation is Southern Ry.Co. v. Maddox, 63 Ga. App. 508, 512 (11 S.E.2d 501). The facts in that case differentiate it from the instant case. We think that a study of the excerpt of the charge herein and the evidence which we have set out, in connection with the other portions of the record, are themselves sufficient to show that this special ground contains no reversible error, without further comment.

(h) Special ground 9: After the court had instructed the jury and just before they retired to consider the case, one of them asked the court "was either one of the drivers fined in the City of Thomasville." The court replied: "There is no evidence of this in the case. That is a matter not in evidence and the court can't instruct you on it." Error is assigned on this colloquy because it is contended that evidently the juror who propounded the question to the court was giving consideration to extraneous matter not a part of the record and the court should have then and there instructed the jury that subject-matter of the question which the juror propounded to the court was irrelevant, and immaterial, and that if either of the drivers had been fined in the municipal court for a violation of the ordinance that fact would not have been admissible in the trial of the instant case. We do not think that the question necessarily indicates that the juror had any private knowledge as to whether either of the parties had been fined in the municipal court. To our minds it will be going far afield to so construe the question. This ground is not meritorious.

In view of what we have said, we can not say as a matter of law that the judgment of the court overruling the amended motion for a new trial should be reversed either on the general grounds or on the special grounds.

Judgment affirmed. MacIntyre, P. J., and Townsend, J.,concur.