Conner v. Downs
| Decision Date | 17 October 1956 |
| Docket Number | No. 2,No. 36419,36419,2 |
| Citation | 94 Ga.App. 482,95 S.E.2d 393 |
| Parties | Sallie Mae CONNER v. T. F. DOWNS |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. The charges of the court in the language of Code Ann.Supp. §§ 68-1634 and 68-1637 do not constitute reversible error on the ground that they were prejudicial to the plaintiff and not authorized by the evidence.
2. That a plaintiff is guilty of ordinary negligence will not bar recovery where it precedes any duty on his part to discover and avoid the negligence of the defendant, but it will bar recovery where it appears that it is the sole proximate cause of injury, or where by the exercise of ordinary care he might have avoided the defendant's negligence after it became apparent to him, or where by the exercise of such care he might have detected negligence on the part of the defendant which, had it been detected, could by ordinary care have been avoided. Negligence of the plaintiff not falling into one of these catagories which concurs with negligence of the defendant in proximately causing the injury, but which does not equal or exceed the negligence of the defendant, goes in mitigation but not in bar of the recovery. The charge of the court on this subject was not subject to the assignments of error urged against it.
3. The verdict was authorized by the evidence and having the approval of the trial court will not be disturbed by this court.
Lloyd Conner, the husband of the plaintiff in this action, was struck and killed by the defendant's automobile while crossing the road in front of his house just after alighting from another automobile which had parked on the opposite side of the highway for the purpose of allowing him to alight, at approximately 8:30 p. m. in August, 1955. The plaintiff filed an action for damages in the Superior Court of Walton County, alleging as negligence against the defendant that he failed to control the speed of his vehicle so as to avoid colliding with the decedent, failed to keep his vehicle under control, failed to turn it so as to avoid hitting the decedent; failed to anticipate his presence on the roadway at a point where a vehicle with headlights burning was parked, and failed to apply his brakes in time to avoid striking and injuring the decedent. The jury returned a verdict for the defendant. The plaintiff assigns error here on the overruling of her motion for a new trial as amended.
James R. Venable, Margaret Hopkins, Atlanta, for plaintiff in error.
Erwin, Nix, Birchmore & Epting, Eugene A. Epting, Athens, A. M. Kelly, Monroe, for defendant in error.
1(a) Special ground 4 of the amended motion for a new trial complains of a charge of the trial court of Code Ann.Supp. § 68-1634, that drivers of vehicles proceeding in opposite directions shall pass each other to the right, and, on 2-lane highways, each shall yield to the other at least one half of the road, on the ground that this charge was not adjusted to the evidence and issues involved, and was prejudicial in that it misled the jury into considering the defendant's conduct in the operation of his vehicle prior to striking the deceased, rather than his negligence at the moment of impact. The evidence shows that almost immediately before the moment of impact between the decedent and the defendant's automobile, at a distance of between 30 and 300 feet therefrom, the defendant met and passed the automobile from which the decedent had just alighted. The defendant was on his right side of the road at the moment of impact, and had to be on his right side of the road in passing the other vehicle. Applying the evidence to the charge, the jury would of course find that the position of the defendant's automobile was in conformity with legal requirements. If they inferred from certain testimony that the cars had passed each other not more than a car length or so from the point of impact, which they might have done, it is obvious that there was not time for the defendant to turn into the oncoming traffic lane after passing in an effort to avoid hitting the decedent. Thus, the charge was pertinent to one of the allegations of negligence charging the defendant with 'failing to turn his said vehicle to the right or to the left so as to avoid striking petitioner's said husband, when there was no condition or obstacle present to prevent his so swerving.' This ground is without merit.
(b) Special ground 5 assigns error on a charge in the language of Code, § 68-1657 as follows: 'Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway: Provided, however, that this section shall not apply to roadways in areas where there are no crosswalks not intersections at which pedestrians may cross the roadway, but that on such roadways in such areas pedestrians crossing the roadway shall have equal rights with vehicles on the roadway,' on the ground that, the pleadings of both sides admitting there was no crosswalk on the area in question, the charge should have been confined to areas without crosswalks and the first clause of this sentence should not have been charged. The charge did not, as contended, present for consideration the question of whether the decedent was under a duty to yield the right of way because of the existence of a marked or unmarked crosswalk at an intersection. Since there was no intersection and no crosswalk, the first clause did not apply and the remainder of the sentence did apply; the jury could not have been misled, in view of uncontradicted pleadings and evidence on this feature of the case, into applying a rule as to yielding the right of way which, in the absence of instruction, they might have done, but which the court specifically charged they should not do under circumstances corresponding to the undisputed evidence. Further: 'It is not cause for a new trial that the court read and charged to the jury a Code section, part of which was applicable to the case and part not, where it does not appear that the reading of the inapplicable part was calculated to mislead the jury or was prejudicial to the rights of the losing party.' Benton Rapid Express v. Sammons, 63 Ga.App. 23, 10 S.E.2d 290, 294; Martin v. Hale, 136 Ga. 228(2), 71 S.E. 133; Floyd v. Boss, 174 Ga. 544(5), 163 S.E. 606. The charge in its entirety was instruction to the jury that the plaintiff's husband was under no duty to yield the right of way to the defendant, was favorable to her, and she cannot complain.
2. The court charged the jury as follows:
'I charge you further that if you believe that a preponderance of evidence fails to show that the defendant was more negligent in the matter which caused the death of Lloyd Conner than was Lloyd Conner, himself, if he was negligent, or, if you find that Thomas Fullilove Downs and Lloyd Conner were equally negligent, then in either event you should find for the defendant.
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