Gaffron v. Metropolitan Atlanta Rapid Transit Authority

• Decision Date: 06 November 1997
• Docket Number: No. A97A1414,A97A1414
• Citation: 494 S.E.2d 54,229 Ga.App. 426
• Parties: , 97 FCDR 4196 GAFFRON v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.
• Court: Georgia Court of Appeals

Page 54

494 S.E.2d 54

229 Ga.App. 426, 97 FCDR 4196

GAFFRON v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.

No. A97A1414.

Court of Appeals of Georgia.

Nov. 6, 1997.

Reconsideration Denied Nov. 18, 1997.

Certiorari Denied Mar. 6, 1998.

Thomas W. Malone, Lawrence J. Pond, Atlanta, for appellant.

Chambers, Mabry, McClelland & Brooks, Walter B. McClelland, Atlanta, for appellee.

JOHNSON, Judge.

Audrey Gaffron sued Metropolitan Atlanta Rapid Transit Authority ("MARTA") for damages sustained when she was struck by a MARTA bus while attempting to cross a street in Atlanta. A jury awarded Gaffron $20,000. Gaffron appeals, alleging that errors committed by the trial court resulted in a low verdict. For reasons which follow, we reverse.

The evidence at trial showed that the incident occurred at the intersection of 15th Street and West Peachtree Street. At this intersection, 15th Street is a four-lane road with two lanes for eastbound traffic and two lanes for westbound traffic. It dead-ends into West Peachtree Street, which is a one-way road with five lanes for northbound traffic. The intersection is governed by a pedestrian-control signal which exhibits the words "WALK" or "DON'T WALK." The two lanes of vehicular traffic turning from 15th Street onto West Peachtree Street have a green light at the same time the pedestrian signal exhibits the "WALK" signal for pedestrians to cross West Peachtree Street.

Gaffron pushed the pedestrian-control signal button, waited for the "WALK" signal to appear, and proceeded to cross West Peachtree Street. As Gaffron was waiting for the "WALK" signal to appear, the MARTA bus driver was stopped on 15th Street at the red light. When the light changed to green, the bus driver turned onto West Peachtree Street.

According to eyewitness Bobbie Jones, as the pedestrian signal changed to instruct pedestrians to cross the street, Gaffron placed her foot directly into the crosswalk and never angled out of the crosswalk until she was struck by the MARTA bus. While Jones acknowledged that the bloodstain where Gaffron's leg was pinned by the bus was not in the crosswalk, she testified that when she last saw Gaffron, Gaffron was in the crosswalk. Jones opined that the bloodstain was outside the crosswalk because Gaffron was "knocked over to the side and knocked over from the impact of the bus." Jones saw "part of her body slide, hit to the ground."

Gaffron testified that the bus was right in front of her when she saw it, that she put up her arms and her elbows struck the right front door of the bus. She was trying to go backward away from the bus. According to Gaffron, she never considered going out of the crosswalk and she never, by her own volition and intent, took even one step outside the crosswalk. Rather, she was pushed out of the crosswalk by the bus or stepped out trying to avoid being hit by the bus.

Every witness, with the exception of MARTA's driver, who never saw any pedestrian, acknowledged that Gaffron was waiting on the curb at the crosswalk and entered the roadway inside the crosswalk. One witness testified, however, that Gaffron was outside the crosswalk when she was hit by the bus. According to Mae Murphy, Gaffron stepped into the crosswalk and walked about halfway across West Peachtree Street. Gaffron slowed to let a white van go by and started walking again. She then "walked out of the crosswalk going around the front of the bus" and was not in the crosswalk when the bus hit her. Murphy testified the bus driver stopped as soon as he hit Gaffron. In addition, the MARTA bus driver testified that the bus did not knock Gaffron in any direction but that she was hit at the front door and fell at the right front tire.

1. In enumerations of error one through four, Gaffron contends the trial court erred in failing to grant her motion for a directed verdict on liability and erred in charging the jury on ordinary care, the avoidance doctrine, and comparative negligence. Gaffron suggests these errors stemmed from the trial court's mistaken belief that she had a duty to look out for approaching vehicles.

This case is governed by OCGA § 40-6-22. This statute was specifically drafted by the legislature to deal with intersections which have pedestrian-control signals. The statute grants pedestrians the right of way when they cross the street in accordance with the signals:

"Whenever special pedestrian-control signals exhibiting the words WALK or DON'T WALK or symbols so directing a pedestrian are in place, such signals shall indicate as follows: (1) Flashing or steady WALK--Pedestrians facing such signal may proceed across the roadway in the direction of the signal. Every driver of a vehicle shall yield the right of way to such pedestrians." (Emphasis supplied.) OCGA § 40-6-22(1) (pre-1995 statute). This statute does not mention the word crosswalk or contemplate the use of a crosswalk by the pedestrian.

This statute should be read in conjunction with OCGA § 40-6-21, which provides in pertinent part as follows:

"(a) The following meanings shall be given to highway traffic signal indications, except those on pedestrian signals: (1) Green indications shall have the following meanings: (A) Traffic, except pedestrians, facing a CIRCULAR GREEN signal may proceed straight through or turn right or left unless a sign at such place prohibits either such turn. Vehicular traffic, including vehicles turning right or left, shall yield the right of way to ... pedestrians lawfully within the intersection or an adjacent crosswalk at the time such signal is exhibited....." (Emphasis supplied.) OCGA § 40-6-21(a)(1)(A) (pre-1995 statute). This statute mandates that a vehicle must yield the right of way to a pedestrian who is lawfully within the intersection (i.e., crossing the intersection in accordance with a flashing or steady WALK signal) or a pedestrian who is lawfully in a crosswalk. MARTA contends that Gaffron had a duty to exercise ordinary care for her own safety, had a duty to avoid the consequences of any negligence on the part of its bus driver, assumed the risk of any injury, and was negligent because she was outside the crosswalk when she was struck by the bus. Gaffron contends she was not outside the crosswalk when she was struck, but was pushed out of the crosswalk upon impact. Where Gaffron was located when she was struck by the bus, however, is not determinative in this case.

It is true that both OCGA § 40-6-21(a)(1)(A) and § 40-6-22(1) mandate that the driver of a vehicle shall yield the right of way to a pedestrian lawfully crossing an intersection. However, these statutes do not abrogate a pedestrian's duties to exercise ordinary care for her own safety and avoid the consequences of any negligence on the part of others. While a pedestrian is not required to continually look and listen to ascertain if vehicles are approaching (see Whiteway Laundry & Dry Cleaners v. Childs, 126 Ga.App. 617, 620(10), 191 S.E.2d 454 (10) (1972)), a pedestrian may not ignore traffic conditions and enter the roadway relieved of her duty to exercise ordinary care for her own safety. See Harris v. Cates, 105 Ga.App. 178, 182(6), 123 S.E.2d 703 (1961), rev'd on other grounds, 217 Ga. 801, 125 S.E.2d 649 (1962) (failure of a pedestrian to look at all or to look at a given time for oncoming vehicles may, under some circumstances, constitute negligence).

In Greene v. Helms, 115 Ga.App. 447, 451, 154 S.E.2d 892 (1967), this court held that even though vehicles were required to yield to pedestrians crossing the street within a crosswalk, and thus the pedestrian was entitled to assume that an approaching vehicle would obey the rules of the road and yield the right of way to the pedestrian, a pedestrian may still be negligent in failing to look for vehicles. According to Greene, questions regarding comparative negligence are peculiarly for determination by the jury. Id.

"Certainly today ordinary care for [her] own safety requires a pedestrian upon entering any public street to look out in every direction from which traffic might approach and to ascertain that it is safe to enter the street. Having done this, [she] is under the further duty, 'while crossing or walking or standing in the roadway, to keep a reasonable lookout for passing vehicles, in order to avoid injury therefrom; and the failure to do so may constitute negligence ... although it will not necessarily do so under all circumstances.' [Cit.]" Harris, supra at 183, 123 S.E.2d 703.

In short, the law does not, as Gaffron suggests, relieve a pedestrian who has the right of way from all duty to exercise ordinary care for her own safety or to avoid the negligence of a vehicle driver, if it is possible to do so, once it becomes apparent or should have become apparent to her. Rather, where there is evidence to support them, such issues should be left to jury resolution. This principle has been upheld on numerous occasions in the context of vehicular accidents. In Kirkland v. Moore, 128 Ga.App. 34, 35-37, 195 S.E.2d 667 (1973), involving an automobile/motorcycle collision at an intersection, we held that even though a motor vehicle driver has the right of way at an intersection and has the right to assume that drivers of other vehicles will yield the right of way and exercise the ordinary care required of them, the driver having the right of way is not relieved of his own duty to exercise ordinary care. "His right of way and right to assume the absence of negligence by others do not entitle him to drive blindly or recklessly across an intersection ... without regard to the conditions and consequences." (Punctuation omitted; emphasis in original.) Id. at 36, 195 S.E.2d 667. See also Stroud v. Woodruff, 183 Ga.App. 628(1)(2), 359 S.E.2d 680 (1987).

Gaffron testified that she was familiar with the area and had traversed the intersection on numerous previous occasions. She further acknowledged that she was aware that two lanes of traffic would...