Tyson v. Shoemaker

• Decision Date: 10 April 1951
• Docket Number: No. 17403,17403
• Citation: 208 Ga. 28,65 S.E.2d 163
• Parties: TYSON v. SHOEMAKER.
• Court: Georgia Supreme Court

Page 163

65 S.E.2d 163

208 Ga. 28

TYSON v. SHOEMAKER.

No. 17403.

Supreme Court of Georgia.

April 10, 1951.

Rehearing Denied May 16, 1951.

Syllabus by the Court.

1. The motion to dismiss the writ of certiorari is denied.

2. That an act can not be declared to be negligence per se, or as a matter of law, does not preclude a finding by the jury that it was negligence as a matter of fact.

The parties will be referred to as they appeared in the trial court. The plaintiff's action to recover damages for personal injuries and damages to his automobile, resulting from logs falling off of the truck of the defendant on the automobile of the plaintiff, resulted in a verdict for the plaintiff. The defendant's motion for new trial was overruled, and, upon exception, the Court of Appeals affirmed the judgment of the trial court. Certiorari was granted by the Supreme Court based upon the action of the trial court in striking, on oral motion, two amendments to the defendant's answer, and the exclusion of testimony in support of the amendments.

The plaintiff's injuries were received 'on or about the 3rd day of February, 1947 * * * at the intersection of North Broad Street and State Highway 38 * * * in the northern part of Cairo, Georgia.' The defendant, in his answer, denied the plaintiff's allegations of negligence, and in further answering alleged that 'The State Department of Public Safety in conjunction with the State Highway Department had designated State Road No. 38 as a Throught Highway requiring vehicles coming into or going across said highway to come to a stop before entering same, and the State Highway Maintenance Department pursuant thereto had erected a sign on the east side of North Broad Street and just south of the right of way of said highway showing that said highway was a through highway and having the word 'Stop' thereon,' etc. See Ga.L.1939, pp. 295, 298, Code Ann.Supp. § 68-315(a).

Thereafter the court allowed, subject to objection, two amendments to the defendant's answer, the first alleging that, on the date of the plaintiff's injuries 'and for a number of years prior thereto, a sign was and had been maintained on the east side of North Broad Street and just south of the right-of-way of State Road 38, in Cairo, Georgia, showing that said highway was a through highway and having the word 'Stop' thereon; * * * the plaintiff * * * well knew that its purpose was to give priority to vehicular traffic on said State Highway over vehicular traffic on said Broad Street, and * * * it could and would be reasonably expected by the operator of defendant's log truck * * * that he, the plaintiff, would give priority to all such highway traffic and bring his automobile to a stop before entering or crossing said highway; that the plaintiff had used and entered into this intersection on many occasions * * * that on the particular occasion described in the plaintiff's petition he altogether disregarded said 'Stop' sign and said practice and custom [of stopping at the intersection], and approached to and entered upon said Highway at an unabated speed and crossed to the line of travel of the defendant's truck.'

In the second amendment it was alleged that the sign was 'a metal sign affixed to a post, * * * being approximately two feet square, and having thereon in large letters the words 'Through Street Stop'; that this sign had been erected at said position in the year 1934 by the Street Superintendent of the City of Cairo on orders from the chairman of the Street Committee of the Mayor and Council of the City of Cairo and had continuously remained in said position up to and including the day of the accident.' It was further alleged that the plaintiff had knowledge of the sign, and that the public generally, including the defendant's driver, would rely on the plaintiff to give observance to the sign and stop before entering the intersection; and that the act of the plaintiff, in failing to stop, was the proximate cause of the plaintiff's damages and injuries.

The defendant offered evidence tending to support the allegations of the two amendments which were stricken by the trial court. See special grounds 1 and 2 of the amended motion for new trial, division 2 of the opinion, Tyson v. Shoemaker, 83 Ga.App. 53, 62 S.E.2d 586. This evidence was excluded from the consideration of the jury by the trial court.

Bell & Baker and R. A. Bell, all of Cairo, Neely, Marshall & Greene, Edgar A. Neely, Jr., and Ferdinand Buckley, all of Atlanta, for plaintiff in error.

Cain & Smith and Geo. T. Smith, all of Cairo, for defendant in error.

HEAD, Justice.

The Court of Appeals in its opinion in Tyson v. Shoemaker, 83 Ga.App. 33, at page 49, 62 S.E.2d 586, at page 596, stated: 'counsel also contend that the stop sign, even if unofficial, was sufficient to bring into operation the rules of the common law and require that the plaintiff, in the exercise of ordinary care, should heed the sign and come to a complete stop. We cannot subscribe to this view.' On page 51 of 83 Ga.App., on page 597 of 62 S.E.2d, it is stated: 'The jury was authorized to find that the failure of the truck driver to yield the right of way under the circumstances shown was the proximate cause of the plaintiff's injury and damage. Such failure constituted negligence per se under the law, and no jury question is presented as to whether or not under the rules of the common law the stop sign, even if unofficial, required the plaintiff to stop at the intersection.'

These extracts from the opinion of the Court of Appeals might be construed as indicating that negligence per se has a superior legal weight to negligence as determined by a jury. Such a distinction does not exist as a matter of law. In Central of Ga. Ry. Co. v. Larsen, 19 Ga.App. 413, 419, 91 S.E. 517, 521, Judge Jenkins (later Chief Justice of the Supreme Court), speaking for the court, said: 'But we know of no distinction recognized by law whereby the right of plaintiffs to recover is affected in a greater or less degree according to whether negligence on his part follows as a matter of law from a fact proved, or whether the question of negligence as well as the fact itself is a matter to be determined by a jury. The difference between negligence per se and other negligence is in the mode of establishing negligence. In the one case the law itself establishes negligence when a certain act or omission is proved, while ordinarily the question whether a proved fact constitutes negligence is left to the determination of a jury. Whether negligence be established in the one mode or in the other makes no difference in its legal effect when established.' See also 65 C.J.S., Negligence, § 1(e) pp. 322, 323; Platt v. Southern Photo Material Co., 4 Ga.App. 159, 163, 164, 60 S.E. 1068; Lee v. Georgia Power Co., 44 Ga.App. 435, 161 S.E. 851.

'An act or omission may amount to negligence under the particular facts and circumstances, although there is no statute so declaring.' Western & A. Railroad v. Reed, 35 Ga.App. 538, 540, 134 S.E. 134, 135; ...