Eubanks v. Mullis
| Docket Number | 24515. |
| Decision Date | 12 September 1935 |
| Citation | 181 S.E. 604,51 Ga.App. 728 |
| Parties | EUBANKS v. MULLIS. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Where a pedestrian, after passing between two parked automobiles looked to his left for traffic, but instantly, and before he had time to look to his right, was struck and injured by an automobile being driven on the left side of the street, that is "astraddle" and to the left of the center of said street, and where the pedestrian could have seen the automobile had he had time to look to his right, and the driver of the automobile could have seen the pedestrian had he been looking, and where the street to the right of the driver of the automobile at this point was clear and could have been used by said automobile at the time of the accident, it was a question for a jury to determine whose negligence was responsible for the injury; and it was error to grant a nonsuit.
Error from Superior Court, Bleckley County; Eschol Graham, Judge.
Suit by R. W. Eubanks against Mrs. Eli Mullis, executrix. To review a judgment of nonsuit, plaintiff brings error.
Reversed.
Blackshear & Blackshear and L. F. Watson, all of Dublin, for plaintiff in error.
H. E Coates, of Hawkinsville, and Burch & Daley, of Dublin, for defendant in error.
This was an action for damages on account of injuries caused by the alleged negligence of the defendant in the operation of his automobile, alleged to have occurred on December 23 1924. Defendant was driving his automobile along Jefferson street, a public highway and street in the city of Dublin, Ga., on his left side thereof, that is, "astraddle" of the middle of the street with the left side of defendant's automobile two or three feet over to the left of the center of the street. Plaintiff was in the act of crossing Jefferson street, between intersections, passing between two automobiles parked at the curb at an angle of about 45 degrees. One of these cars, a Buick, on plaintiff's left, was longer than the one on his right, a Ford. Plaintiff was going across the street to his car, which was parked longitudinally some distance down the street to plaintiff's right, but not directly on the opposite side of the street from the Buick and the Ford. Plaintiff had passed between the two parked automobiles, beyond the end of the Ford; and when he reached the rear of the Buick, he looked up the street to his left to see if any traffic was approaching from that side, his head and right foot being the parts of his body beyond the end of the Buick in the street, and instantly, before he could look to his right down the street, his right foot was struck by defendant's automobile, and he was knocked down on the pavement and injured as alleged. He had passed beyond the end of the Ford, and was in plain view of defendant, and he could have seen defendant had he looked to his right, and defendant could have seen him. The street was clear on the opposite side from the two parked automobiles where plaintiff was crossing, and there was plenty of room for the defendant to have driven his automobile on that side, his right side of the street. If the defendant had been driving his automobile on his right side of the street, he would not have run into the plaintiff. It was contended that the defendant was negligent in violating the law of the rule of the road, that is, in driving his automobile upon the left side of the road under the circumstances, and in operating it in such a manner as to hit and injure the plaintiff. Plaintiff contended that, had defendant been in the exercise of ordinary care and diligence at the time, he could have seen plaintiff in time to have applied his brakes and avoided striking him. This was substantially the case as laid and proved by the plaintiff.
At the conclusion of plaintiff's evidence, consisting of his testimony and that of other witnesses, the judge on motion of the defendant granted a nonsuit, and the case is in this court to review that judgment.
The exception being to the grant of a nonsuit, it is appropriate to state in the beginning that: "In passing on a motion for nonsuit upon the conclusion of the evidence submitted in behalf of the plaintiff, such evidence should be construed most favorably to him, and if, so construed, a prima facie case for the plaintiff is made out, a nonsuit should be refused." Henry v. Roberts, 140 Ga. 477, 79 S.E. 115; Henry v. Nashville, etc., Ry. Co., 50 Ga.App. 49, 176 S.E. 906. "A nonsuit shall not be granted merely because the court would not allow a verdict for plaintiff to stand; but if the plaintiff fails to make out a prima facie case, or if, admitting all the facts proved and all reasonable deductions from them, the plaintiff ought not to recover, a nonsuit shall be granted." Code 1933, § 110-310. "A nonsuit should not be granted when there is any evidence tending to sustain the plaintiff's claim, or where the jury can fairly and reasonably infer from the evidence a state of facts favorable to the plaintiff." Brown v. Savannah Electric, etc., Co., 46 Ga.App. 393, 167 S.E. 773. See Manufacturers' Finance, etc., Cor. v. Bradley, 50 Ga.App. 138, 142, 177 S.E. 272; Farmers', etc., Bank v. Stovall Investment Co., 50 Ga.App. 277, 280, 177 S.E. 882; Starr v. Greenwood, 48 Ga.App. 535, 173 S.E. 243.
Questions of negligence, diligence, contributory negligence, and proximate cause are peculiarly matters for the jury, and a court should not take the place of the jury in solving them, except in plain and undisputable cases. Howard v. Savannah Electric Co., 140 Ga. 482, 79 S.E. 112; Southern Cotton Oil Co. v. Gladman, 1 Ga.App. 259 (8), 260, 58 S.E. 249; Columbus Power Co. v. Puckett, 24 Ga.App. 300, 100 S.E. 800.
O'Dowd v. Newnham, 13 Ga.App. 220, 80 S.E. 36; Flowers v. Faughnan, 31 Ga.App. 364, 120 S.E. 670. While it is true that the driver's right-hand side of the road or street is customarily and usually the proper side of the road on which to drive his automobile (see 42 C.J. 902, § 611; 29 C.J. 650, § 415), and while under statute in this state "the rule of the road requires travelers with vehicles, when meeting, to each turn to the right" (Code 1933, § 105-112), and this applies to all public streets and highways, the law of the road does not require a traveler to keep to the right in traveling along the street, but applies only in meeting traffic, and in other peculiar or particular circumstance, when the fundamental rule of the exercise of reasonable care for the safety of others is required. One driving an automobile is free to travel along any portion of the street or highway he chooses, and may drive on his own left-hand side thereof when the road is open and other vehicles are not occupying or approaching on that side of the road, and when such use does not infringe upon the rights of pedestrians and others, who have an equal right to the use thereof, without being chargeable with negligence as a matter of law because of the mere fact of his position on the highway. However, one who is driving on his left-hand side of the street must exercise more care than if he were on the right side thereof. 42 C.J. 903, 908. In Roberts v. Phillips, 35 Ga.App. 743, 134 S.E. 837, 838, this principle of law in the form of a request to charge was approved by the Court of Appeals: "If a person operating a motor vehicle chooses on a dark, rainy night to use the left-hand side of the road, it is his duty to be on the alert, use his eyes, his ears, and all of his senses to exercise care and caution to prevent injury either to himself or to other persons lawfully entitled to use the road." The Supreme Court on certiorari approved this principle. Phillips v. Roberts, 166 Ga. 897 (2), 144 S.E. 651. It has also been held that where there is an accident and a pedestrian is hit by an automobile being driven upon its left side of the road, the presumption is against the driver of the automobile. McGee v. Young, 132 Ga. 606, 608 (4), 64 S.E. 689. See, further, 42 C.J. 907; Oliff v. Howard, 33 Ga.App. 778, 780 (2), 127 S.E. 821; Sullivan v. Morris, 50 Ga.App. 394, 396, 178 S.E. 324. The driver of an automobile has no right to assume that the road is clear, but must keep a vigilant lookout ahead for pedestrians and traffic, particularly at places where the conditions are such that there are special reasons for anticipating the presence of pedestrians, such as a crowded or congested city street (O'Dowd v. Newnham, supra; Elrod v. Anchor Duck Mills, 50 Ga.App. 531, 533, 179 S.E. 188); or where he is driving over that portion of the street which is usually used by vehicles going in the opposite direction. 42 C.J. 909-911, 19, and cit. A pedestrian has a right to use the street, and may cross...
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