Giles v. Voiles

• Decision Date: 16 March 1916
• Docket Number: (No. 310.)
• Citation: 144 Ga. 853,88 S.E. 207
• Parties: GILES. v. VOILES.
• Court: Georgia Supreme Court

144 Ga. 853

88 S.E. 207

GILES.

v.VOILES.

(No. 310.)

Supreme Court of Georgia.

March 16, 1916.

(Syllabus by the Court.)

Error from Superior Court, Oconee County; C. H. Brand, Judge.

Action by J. A. Voiles against W. O. Giles. Judgment for plaintiff, and defendant brings error. Reversed.

Middlebrooks & Pennington, of Madison, for plaintiff in error.

Wolver M. Smith, of Athens, for defendant in error.

ATKINSON, J. [1] 1. On the 30th day of May, 1914, the owner of a mule was leading it along a public highway, when an automobile being driven by its owner approached from behind. When the machine was in the act of passing, the mule shied out into the road, and a collision occurred, resulting in injury to the mule, which was so serious that after a few days it became necessary to kill the mule, thereby rendering it a total loss. The scene of the catastrophe was not at or near a bridge, dam, sharp curve, descent, or crossing of an intersecting highway or railroad. The owner of the mule instituted an action for damages against the owner of the automobile, on the ground that the injury was caused by the negligence of the defendant in the operation of the machine. The jury returned a verdict for the plaintiff. The defendant made a motion for new trial, and excepted to the judgment refusing a new trial. On the trial the judge charged:

"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 exercises due diligence, or by failure to exercise due diligence is guilty of negligence, the character of the instrumentality which he operates and the danger attached to its operation, if it be improperly used, as well as the character of the highway being traversed, and the probability of inflicting injury, if all needed care is not used in the operation of the machine, are all to be taken into account by the jury."

In the motion for new trial complaint was made of the language, "The degree of diligence which must be exercised in a particular exigency is such as is necessary to prevent injuring others, " as employed in the foregoing excerpt, on the ground that it instructed the jury that the defendant was bound to a higher degree of care than that required by law. By section 5 of the act approved August 13, 1910 (Acts 1910, p. 90), it is provided in part that no person shall operate a machine on any of the highways of this state, as described in this act, at a rate of speed greater "than is reasonable and proper, having regard to the traffic and use of such highway, or so as to endanger the life or limb of any person or the safety of any property." By section 6 it is provided that upon approaching a pedestrian in a roadway or highway, as described in this act, or a horse or horses, or other draft animals being ridden or driven thereon, the person operating the machine shall give reasonable warning of its approach by the use of a bell, horn, gong, or other signal, and "use every reasonable precaution to insure the safety of such person or animal, and in the case of horses or other draft animals, to prevent frightening the same." Section 7 provides that a person operating a machine shall, at the request or signal by one putting up the hand or other sign of distress of a person riding, leading, or driving a restivehorse or other draft animal, bring such machine immediately to a stop, and, if traveling in an opposite direction, remain stationary so long as may be reasonable to allow such horse or animal to pass, and, if traveling in the same direction, use reasonable caution in passing such animal, and in case such horse or animal appears frightened, or the person operating such machine is requested to do so, such person shall cause the motor of the machine to cease running so long as shall be reasonably necessary to insure the safety of others. Section 10 provides that nothing in this act shall be construed to curtail or abridge the right of any person to prosecute a civil action for damages by reason of injuries to person or property resulting from the negligent use of the...