O'Dowd v. Newnham

• Court: Georgia Court of Appeals
• Writing for the Court: RUSSELL, J. (after stating the foregoing facts).
• Citation: O'Dowd v. Newnham, 13 Ga.App. 220, 80 S.E. 36 (Ga. App. 1913)
• Decision Date: 16 August 1913
• Docket Number: 4,533.
• Parties: O'DOWD v. NEWNHAM.

80 S.E. 36

13 Ga.App. 220

O'DOWD v. NEWNHAM.

No. 4,533.

Court of Appeals of Georgia

August 16, 1913

Syllabus by the Court.

A pedestrian and a person with an automobile have each the right to use the public highway; but the right of an operator of an automobile upon the highway is not superior to the right of the pedestrian, and it is the duty of each to exercise his right with due regard to the corresponding rights of the other.

The driver of an automobile is bound to use reasonable care, and to anticipate the presence on the streets of other persons having equal rights with himself to be there; and a pedestrian, when lawfully using the public highways, is not bound to be continually looking and listening to ascertain if auto cars are approaching, under the penalty that if he fails to do so, and is injured, it must be conclusively presumed that he was negligent.

The degree of diligence which must be exercised in a particular exigency is such as is necessary to prevent injuring others and, in considering whether the operator of an automobile exercised due diligence, or, by failure to exercise due diligence, was guilty of negligence, the character of the instrumentality which he operated, and the danger attached to its operation if improperly used, as well as the character of the highway being traversed, and the probability of inflicting injury if all needed care was not used in the operation of the machine, are all to be taken into account.

The terms "contributory negligence" and "failure to use ordinary care to avoid injury" are not synonymous, but proof either that the person injured used ordinary care to avoid injury, or that the party inflicting the injury was guilty of such gross negligence that the injury of the other party could not have been prevented, even by the exercise of ordinary care, may entirely negative the existence of contributory negligence.

A pedestrian who, in using a public highway, is in the exercise of due care for his own protection and for the safety of others cannot as a matter of law be held to be guilty of contributory negligence merely because he does not run to escape injury by an automobile. Automobiles have no priority of right in the use of the public highway, and the operation of an automobile upon the crowded streets of a city necessitates exceeding carefulness on the part of the driver. Thoughtless inattention on his part is the essence of negligence.

Even if contributory negligence is an affirmative defense and must be specially pleaded, unless the evidence affirmatively establishes that the negligence of the injured party contributed to the injury, the defense of contributory negligence, whether pleaded or not, cannot be employed to defeat the action.

Since the driver of an automobile is bound to use a degree of reasonable care proportioned to the danger of the instrumentality which he operates, and is bound, when traversing a much-frequented street, to anticipate the presence on the street of other persons having an equal right with himself to be there, proof in this case that the automobile in question was suddenly turned from the course it was taking, whereby it collided with a pedestrian, to whom no signal or warning was given by the driver of the automobile it appearing from undisputed evidence that the pedestrian was exercising due care, was sufficient to authorize the jury to find that the negligence of the driver was the proximate cause of the injury, and to so exclude all idea of contributory negligence as to render instructions by the court upon this subject unnecessary.

The operation of an automobile at a rate of speed in excess of that prescribed by a valid municipal ordinance is negligence per se. The driver must so operate his automobile as to have its speed at all times under his control; and whenever it is necessary, for the preservation of either person or property that the automobile should be brought to a stop, the exercise of reasonable care requires that the vehicle be stopped instantly. It is for the jury to determine, from the evidence, in any case of a collision between an automobile and a pedestrian, whether it was the duty of the driver to have stopped the automobile, whether or not he endeavored to do so, and whether the failure to stop in the particular case was due to negligence.

Whether the use of a gong, a horn, or other warning to pedestrians is necessary in the exercise of due diligence by the driver of an automobile, and whether the failure of the driver to give these or other cautionary signals is negligence, are jury questions, dependent for solution upon the peculiar facts of the particular case; and for this reason the judge in this case did not err in refusing to charge the jury that "there is no law requiring the operator of an automobile, while properly using the streets, to sound a gong, blow a horn, or give other warning to pedestrians of its approach."

Refusal to give a requested instruction to the jury is not error unless the charge requested is in itself correct and perfect; and although a request to charge may contain a correct abstract principle of law, it is properly refused, where it may be misleading or confusing when applied to the facts of a particular case. However, so far as it was pertinent, the instruction requested in this case was covered in the general instructions of the court to the jury; and inasmuch as the instructions given were correct, the complaint that some other appropriate principle of law was not given in immediate connection therewith is not ground for a new trial.

Even if the right of one who is injured by another, to whom he does not occupy any contractual relation, to recover damages for the injury, can be defeated by proof that the negligence of the injured party was equal to that of the tort-feasor, instead of merely being diminished in proportion to the negligence of the injured party, still the charge of the court upon this subject affords the defendant no cause for complaint. The court charged the jury: "If you believe that Mr. Mulherin (the driver of the defendant's automobile) was negligent to some extent, and you also believe that Mr. Newnham was negligent to an equal or to a greater extent, the plaintiff cannot recover in this case, and your verdict shall be for the defendant." In view of this instruction, the failure of the court to charge that if the deceased and the defendant's driver were equally negligent the plaintiff could not recover is not cause for a new trial, especially as no appropriate request to charge on the subject of equality of negligence was presented.

The evidence authorized the verdict, and there was no error in refusing a new trial.

Error from City Court of Richmond County; W. F. Eve, Judge.

Action by C. C. Newnham against J. L. O'Dowd. Judgment for plaintiff, and defendant brings error. Affirmed.

Mrs. Newnham brought suit against J. L. O'Dowd for damages for the homicide of her husband, who was struck down and killed by the defendant's automobile. The jury returned a verdict against the defendant for $10,000, and his motion for a new trial having been overruled, he excepted.

The evidence disclosed that Newnham was on the northwest corner of McKinne and Broad streets in the city of Augusta, Ga., when a street car which passed his home was leaving McKinne street. In an endeavor to catch the street car he ran approximately a straight line diagonally from Padgett's corner across the north driveway of Broad street to a point near the center of the street, where the tracks of the street railway diverged. He was going practically in an easterly direction. At the same time the defendant was coming up the north side of Broad street in an automobile, with his family, going west, and when he reached a point approximately opposite Newnham the automobile was suddenly turned to the left--i. e., south--and was in the act of crossing the street car tracks at right angles to its original course, when the front of the automobile struck Newnham, who was still running to overtake the street car. Newnham was knocked violently to the ground and received fractures of the skull, from which he died a short time afterward. There was a brilliant electric arc light at McKinne street, and another within a short distance from the point where the collision occurred, and there was testimony which authorizes the inference that the defendant and Newnham each saw the other, or, in the exercise of due diligence, they could have seen each other, plainly. The distance which Newnham ran, from Padgett's corner to the point where he was struck by the automobile, was approximately 75 yards. The width of the north driveway of Broad street, along which the defendant's automobile was moving, was 52 feet. The total space occupied by the car tracks in the center of Broad street was 17 feet and 9 inches. It is inferable from the evidence that the distance which the automobile traveled, from the time it began to turn to the south, across the street car tracks, to the point at which it struck Newnham, could not have exceeded 50 feet, while the distance which Newnham ran was approximately 210 feet. There was no obstruction which prevented the driver of the automobile from seeing Newnham.

There was testimony in behalf of the defendant that the attempt to turn the car to the south, across the tracks, was caused by the fact that a street car was in the act of stopping at McKinne street; but it is undisputed in the testimony that the automobile suddenly turned from its west-bound zone of travel, up the west-bound driveway on Broad street, to a direction south and approximately at right angles to its former direction, and across the street car tracks in the center of Broad street. No gong was sounded, no...