Shelton v. Rose, 42776

• Court: Georgia Court of Appeals
• Writing for the Court: DEEN; JORDAN, P.J., and J. KELLEY QUILLIAN
• Citation: Shelton v. Rose, 156 S.E.2d 659, 116 Ga.App. 37 (Ga. App. 1967)
• Decision Date: 20 June 1967
• Docket Number: No. 42776,No. 3,42776,3
• Parties: John D. SHELTON, Jr. v. Patricia L. ROSE, by Next Friend

Page 659

156 S.E.2d 659

116 Ga.App. 37

John D. SHELTON, Jr. v. Patricia L. ROSE, by Next Friend.

No. 42776.

Court of Appeals of Georgia, Division No. 3.

June 20, 1967.

Syllabus by the Court

1. A pedestrian and a person operating an automobile have each equal rights to the use of a public street or highway, the right being those prescribed by applicable traffic regulations and the exercise of due care with regard to the conditions actually existing at the time and place.

2-4. The court committed no reversible error in his instructions to the jury.

5. The admissibility of opinion evidence, particularly on subjects of which the general public has some knowledge, is largely within the discretion of the trial judge. It was not error to allow a Georgia State Patrolman who had participated in tests relating to the speed and stopping distance of automobiles to testify as to his opinion based on the result of such tests. The fact that test conditions and those shown to exist in the trial situation were somewhat different goes to the credibility rather than the admissibility of the testimony.

This case involves an intersection collision between an automobile and a two year old child. From a verdict in favor of the plaintiff, the defendant enumerates error on the overruling of his motion for new trial, as to which he insists on the special grounds only.

Pittman & Kinney, Dalton, H. E. Kinney, for appellant.

Kelly, Champion & Henson, Kenneth M. Henson, John W. Denney, J. Norman Pease, Columbus, Ray L. Allison, for appelee.

DEEN, Judge.

1. The 'equal rights clause' of the law of the road is of old standing and has frequently been expressed as follows: 'A pedestrian and a person operating an automobile have each equal rights to use a public highway or street, and it is the duty of each to exercise his right with due regard to the corresponding rights of the other.' Jackson v. Crimer, 69 Ga.App. 18, 23, 24 S.E.2d 603, 607. For similar statements see O'Dowd v. Newnham, 13 Ga.App. 220, 80 S.E. 36; Flowers v. Faughnan, 31 Ga.App. 364(1), 120 S.E. 670; Claxton v. Hooks, 68 Ga.App. 383, 385, 23 S.E.2d 101; Eubanks v. Mullis, 51 Ga.App. 728, 730, 181 S.E. 604; Christian v. Smith, 78 Ga.App. 603, 607, 51 S.E.2d 857; Roseberry v. Freeman, 97 Ga.App. 545, 553, 103 S.E.2d 745. The proposition, as applied in Southland Butane Gas Co. v. Blackwell, 91 Ga.App. 277, 85 S.E.2d 542, to one lying on the roadway in an intoxicated condition, was reversed on certiorari, 211 Ga. 665, 88 S.E.2d 6, because of the Supreme Court's application of the assumption of risk doctrine to the facts of that case. That the assumption of risk doctrine may be applied to an adult unconscious because of intoxication but not to an infant legally incapable of negligence causes courts and juries to reach opposite conclusions on what seem to be otherwise identical sets of facts when viewed from the defendant's standpoint. The instruction objected to in the enumeration of errors before us reads: 'A pedestrian such as the child in this case has equal rights at the place complained of in this suit to be upon the street or highway with the operator of a motor vehicle.' Should this statement be taken to mean that a child has a right to run into the street in front of a moving motor vehicle it would of course be incorrect: the equal rights referred to are rights as dictated by applicable traffic regulations, including those pertaining to right of way. However, immediately after the instruction excepted to, the court charged the doctrine of emergency in favor of the defendant, and immediately prior thereto was this preface: 'I charge you that the law does not impose any duty on a person to guard against sudden, unforeseen acts of another which are not reasonably to be anticipated. The driver of an automobile is bound to use reasonable care to anticipate that persons along public streets or highways and other persons having equal rights with him may be there.' Taken as a whole, the jury could not reasonably have been misled into believing that the court was telling them as a matter of fact that this particular child had an absolute equal right to the intersection, or that the operator of a passing automobile would be the insurer of her safety. The instruction, while not well phrased, does not require reversal of the case.

2. 'The violation of a penal statute is actionable negligence when the violation is the proximate cause of the injuries complained of, or where there is a proximate causal connection between the violation and the injury.' Gulf Oil Corp. v. Stanfield, 213 Ga. 436, 438, 99 S.E.2d 209, 211. An instruction that the defendant would be liable if the jury found that his violation of a city ordinance was or in any...