English v. Georgia Power Co.

• Decision Date: 25 October 1941
• Docket Number: 28980.
• Citation: English v. Georgia Power Co., 66 Ga.App. 363, 17 S.E.2d 891 (Ga. App. 1941)
• Parties: ENGLISH v. GEORGIA POWER CO.
• Court: Georgia Court of Appeals

17 S.E.2d 891

66 Ga.App. 363

ENGLISH v. GEORGIA POWER CO.

No. 28980.

Court of Appeals of Georgia, Division No. 1.

October 25, 1941

Rehearing Denied Dec. 16, 1941.

Syllabus by the Court.

F Joe Turner, Jr., of Atlanta, for plaintiff in error.

MacDougald Troutman & Arkwright and William H. Schroder, Jr., all of Atlanta, for defendant in error.

MACINTYRE Judge.

Joe English, by next friend, Mrs. Emma English, his mother, sued the Georgia Power Company for personal injuries alleged to have been caused by the negligence of the defendant. The judge, on motion of the defendant, directed a verdict in its favor. The plaintiff's motion for new trial was overruled and he excepted.

The plaintiff, a two-year old child, was riding as a guest in an automobile driven by E. F. Sinyard, who had but one arm, in a southerly direction on Howell Mill Road in the City of Atlanta. At the place where Sinyard's automobile collided with the defendant's street car the street car track is located in the center of the road, which is approximately forty feet wide, and there were other automobiles parked along the right curb relatively to the direction in which Sinyard's automobile was travelling. According to the testimony of Sinyard, he had passed three or four other automobiles which were parked on the right side of the road, and in so doing he was required to go upon the street car track. After passing these parked automobiles, he turned off of the track to his right, and as he approached another parked automobile he again turned upon the track to pass it. As to what then occurred we quote from Sinyard's testimony: "I come around the automobile parked on my right side before this collision took place; I imagine it was about ten feet. I pulled out on the car line about ten or fifteen feet before I got to the automobile, and then I will say it was about that distance when the collision happened. My automobile was situated sideways when it came in contact with the street car, hit the left side [of the automobile]. *** I seen the street car before it hit me; I seen the street car coming across the bridge at White Provision Company, I will say around 200 feet before we met each other. This street car was going in the opposite direction; the street car was going north and I was coming to town. Mrs. English was injured and her baby. I did not lose consciousness during any portion of the accident. I remember everything that was going on all the time." On cross-examination Sinyard testified that before this trial he had made a deposition in which he stated that he did not see the street car until after the collision, and that he fainted, had a heart attack, and did not know what happened, but that now he says that he did not pass out and never lost consciousness, and that the reason he testified to the contrary in the deposition was that he was told to "tell it, like that, to keep down trouble in the family, hard feelings with my uncle and aunt. I was told, my uncle and aunt told me, to tell it like that; that it would cause him to lose his job with the Georgia Power Company; and since making my depositions I have filed suit against said company. With reference to whether the motorman applied his brakes, Sinyard testified: "I never did hear the motorman on the street car apply the brakes after he hit the automobile or beforehand at all. I would say the street car ran after the impact, after the collision, around ten feet." Mrs. English, the plaintiff's mother, testified that she was playing with the baby (the plaintiff) on the back seat of the automobile. She also stated: "I did not get an opportunity to see the operator of the street car; all I saw was the street car. I did not hear any kind of noise of an approaching street car. I did not hear any noise as to brakes being applied. It seemed like the automobile stopped on the street-car track. I could not tell you if it had stopped before the impact or stopped afterwards. When I seen the street car I fainted. *** After the impact I was unconscious. *** Being in the position I was, directly in front of it, and not having any background against which it would be moving to the side, but coming straight forward toward me, I did not actually know whether it [the street car] was moving at that time."

The plaintiff was a guest in the automobile which collided with the street car. Hence, the contributory negligence, if any, of the driver of the automobile cannot be imputed to the infant guest, and the conduct of the driver of the automobile is material only to the extent that it bears on the question whether, under all the circumstances, the motorman was negligent. Code, § 105-205; Roach v. Western & Atlantic R. Co., 93 Ga. 785(4), 21 S.E. 67; Locke v. Ford, 54 Ga.App. 322(2), 187 S.E. 715.

The plaintiff alleged that the motorman was negligent in the following respects and that this negligence was the proximate cause of the injuries: (a) In operating the street car at the time and place in question at the fast and dangerous rate of speed of thirty-five miles per hour. (b) In failing to keep a lookout in the direction the street car was going. (c) In failing to warn the plaintiff and the driver of the automobile in which the plaintiff was riding that the street car was approaching. (d) In failing to apply the brakes on the street car and check the speed thereof as it approached the plaintiff and the automobile in which he was riding. (e) In failing to apply the brakes on the street car efficiently and sufficiently and stop the street car before striking the automobile in which plaintiff was riding. (f) In operating the street car into and against the automobile in which the plaintiff was riding and injuring him. The acts of negligence stated in paragraphs (a) and (b) were expressly abandoned by the plaintiff in his brief.

"It is generally true that, if a collision takes place on the wrong side of the road with respect to one of the parties, the presumption of guilt is against such party on the wrong side of the road. McGee v. Young, 132 Ga. 606, 64 S.E. 689. In the present case it is apparent that at the time of the collision the plaintiff himself was on the wrong side of the road, and, nothing else appearing, he would not be entitled to recover. [citing.] 'The presumption that one on the wrong side of the highway is guilty of negligence, is one which may be rebutted. *** Properly considered, the rule of the road is a rule of negligence, and the fact that a person was on the wrong side of the road when a collision took place, does not per se make him liable for damages, but his liability is determined by the rules of law applicable to cases of negligence.' Huddy on Automobiles (7th Ed.) § 323. 'In many of the decisions which hold that the violation of a traffic regulation is negligence per se, the intention of the decision is that the violation is negligence per se, unless some emergency or excuse can be furnished for the violation.' Huddy on Automobiles (7th Ed.) § 323." Sullivan v. Morris, 50 Ga.App. 394, 396, 178 S.E. 324, 325. "The rule of the road requires travelers with vehicles, when meeting, to each turn to the right." Code, § 105-112. An automobile driver on the highway has the right to assume that others driving...