Brown v. Sanders

• Decision Date: 18 September 1931
• Docket Number: No. 20875.,20875.
• Citation: 160 S.E. 542,44 Ga.App. 114
• Parties: BROWN et al. v. SANDERS.
• Court: Georgia Court of Appeals

44 Ga.App. 114

160 S.E. 542

BROWN et al.

v.SANDERS.

No. 20875.

Court of Appeals of Georgia,

Division No. 2.

Sept. 18, 1931.

Syllabus by Editorial Staff.

Error from City Court of Floyd County; John W. Bale, Judge.

Action by Vastie Sanders against J. M. Brown and others. Judgment for plaintiff, and defendants bring error.

Affirmed.

Wright & Covington, of Rome, for plaintiff in error.

Porter & Mebane, of Rome, for defendants in error.

Syllabus Opinion by the Court.

STEPHENS, J.

1. Although vehicles traveling along a street which has been designated by law as atraffic boulevard have the right of way over vehicles coming into the boulevard from intersecting streets, this right is not absolute under all circumstances and conditions, but is relative only, and is determinable by the relative positions of the approaching vehicles, their relative speed, and other attending circumstances. A vehicle, therefore, when crossing such a traffic boulevard at an intersecting street, may, under some conditions, have the right of way over vehicles approaching on the boulevard, and therefore not be guilty of negligence or of a violation of law, in attempting to cross the boulevard in front of the approaching vehicle, but, in crossing the boulevard, may, when considering the relative positions of both vehicles, their relative speed and other circumstances, be in the exercise of ordinary care and diligence. 42 C. J. 974, 978, 985, 989; Thrapp v. Meyers, 114 Neb. 689, 692, 209 N. W. 238, 47 A. L. R. 585, 589; Salmon v. Wilson, 227 111. App. 286, 288; Primock v. Goldenberg, 161 Minn. 160, 200 N. W. 920, 37 A. L. R. 484; Lachance v. Myers, 98 Vt. 498, 503, 129 A. 172; Collins v. Liddle, 67 Utah, 242, 247 P. 476, 478; Barnes v. Barnett, 184 Iowa, 936, 169 N. W. 365; Ward v. Gildea, 44 Cal. App. 380, 186 P. 612; Schneider v. Rolf, 211 Ky. 669, 278 S. W. 100; Sutton v. Quaker City Cab Co., 87 Pa. Super. Ct. 291, 293; Taxicab Co. v. Ottenritter,. 151 Md. 525, 135 A. 587; Hughes v. Hudson-Brace Motor Co., Ill Kan. 397, 207 P. 795; Pline v. Parsons, 231 Mich. 466, 204 N. W. 131; Jacobs v. Richard Carvel Co., Inc., 95 Misc. Rep. 252, 159 N. Y. S. 196; 21 A. L. R. 982.

2. Where in a suit against the owner of an automobile, which was traveling along a traffic boulevard upon which vehicles traveling have the right of way over automobiles approaching from intersecting streets, it was sought to recover damages for the homicide of the operator of an automobile attempting to cross the boulevard from an intersecting street, resulting from a collision between the two automobiles, it could not be said as a matter of law that the operator of the automobile attempting to cross the boulevard was guilty of negligence, or that, if he were guilty of negligence in attempting to cross the boulevard, such negligence was the proximate cause of the homicide, when the evidence authorized the inference that the defendant's automobile, while traveling along the boulevard approaching the intersecting street, was being operated negligently and at an illegal rate of speed, and on the left side of the road, contrary to law, and that the driver failed to slacken the speed after observing the other automobile, and that the operator of the automobile attempting to cross the boulevard could have crossed in safety and avoided a collision had the operator of the automobile traveling along the boulevard been in the exercise of due care and diligence. Yellow Cab Co. v. Echols, 31 Ga. App. 493, 121 S. E. 247; Faggart v. Rowe, 33 Ga. App. 423, 126 S. E. 731; O'Donnelly v. Stapler, 34 Ga. App. 637 (3), 131 S. E. 91. It cannot be said as a matter of law that the deceased, in crossing in front of the automobile which he knew was approaching, was guilty of such negligence as would bar a recovery. The rule which bars from recovery a person who deliberately goes upon a railroad track with knowledge of an approaching train is not applicable to the situation disclosed by the evidence in this case. See, in this connection, 42 C. J. 964; Thrapp v. Meyers, 114 Neb. 689, 692, 209 N. W. 238, 47 A. L. R. 585.

3. In a...