162 Ga. 511 | Ga. | 1926
Lead Opinion
Nellie M. Bryant, as the widow of Henry E. Bryant, brought suit against the Georgia Railway & Power Company to recover damages for the tortious killing of her husband by the running of its street-car. The record shows that the husband of the plaintiff went to a street corner for the purpose of assisting two of his guests upon a street-car belonging to the defendant. While the three were standing upon the street corner the car passed on its outbound trip. They remained at the corner until the car went to the end of the line and returned. When the car was about two hundred feet from the corner where they were standing, and when the car had just come over the top of a hill which sloped the whole distance of two hundred feet down to where they were standing, plaintiff’s husband went out into the street and signaled the street-car tó stop at Chestnut Street, where they were standing, and which is the ordinary and necessary method of signaling defendant’s cars to stop. The distance from the curbing to the first street-car rail is only about thirteen feet. While the petitioner’s husband was standing at the usual place to signal the street-car to stop at the crossing, and in full view of the motorman in charge of defendant’s car, an automobile driven by one Leonard Westbrook came over the hill ahead of the street-car. When plaintiff’s husband saw the automobile he had no time to reach the sidewalk and it was necessary for him to step aside towards the
The sole question to be determined is whether the Court of Appeals, in affirming the judgment of the trial court in awarding a nonsuit, committed error. Under the pleadings and evidence in the case we are of the opinion that the Court of Appeals erred in sustaining the judgment of the lower court in awarding a nonsuit, and that the case should have been submitted to the jury under proper instructions to determine from the evidence whether the plaintiff’s husband was guilty of such negligence under the circumstances as would debar his widow from recovering for his homicide. There were several eye-witnesses to the killing of plaintiff's husband. One of them, Mary O’Eeil, testified: “When the car was coming back from the end of the line Henry .Bryant started to put them on the street-car. When Henry walked out into the street the street-car was about Doray Street, the next street west of Chestnut Street, a short block. As to whether Henry signaled the car — yes, just as the car was kinder coming down Doray Street he kinder did like that [indicating]. The corner of Chest nut and West Hunter is a regular stopping-place for street-cars, lie signaled the car as it was on Doray Street. He was standing about three feet from the nearest rail of the street-car track. I was standing near the curbstone, and the visitors were standing out there, a little behind Henry. The street-car projects over the rail about a foot. I saw the automobile truck about that time coming on just a little ahead of the street-car — about an automobile length ahead of the street-car. The automobile was about three feet from the curb; it was running up kinder close to the curb, might not have been three feet; but it was running nearer the curb than it was the street-car track. After the automobile truck got down from where the women were standing, why it kinder looked like it was going to run up into them, then they had to jump out of the way of it a little. The automobile kinder pulled over that way toward the car-track. The women jumped back out of the way. As to whether or not that automobile turned, it was turned towards Henry Bryant — you see he was standing over on that side
Another witness, Necie Wyatt, testified: “The truck was just a little ahead of the street-car. Some people were out waiting in the street, standing at Chestnut and West Hunter Street. This automobile kinder turned from these people and turned towards this man, and he steps out too far and the street-car knocked him down and run over him.” Georgia Haynes testified in part as follows: “I went down to the car line at the corner of Chestnut and another street on which there is a car line. We stood there waiting for the street-car. . . Bryant, plaintiff’s husband, went out to wave it down. I saw the top of the street-car coming over the hill; it was coming so fast he went'out to wave the car, which was lighted, down. The street-car didn’t stop at that cross street; it kept right on, and didn’t slacken its speed. It knocked Bryant down. I could not tell what part it struck; I know it struck him enough to knock him down. I saw it strike him. There was a street light burning at that point. After Bryant was knocked
From the foregoing evidence we can not say as a matter of law that the plaintiff was guilty of such negligence as would bar a recovery. We are of the opinion that this is a question of fact for a jury to determine. There are decisions which hold that if a person who is momentarily confronted by imminent danger takes a step or two in the wrong direction, and a collision results, he is not for that reason chargeable with contributory negligence. Stack v. East St. L. Ry. Co., 245 Ill. 308 (4) (92 N. E. 241, 137 Am. St. R. 318). In 20 R. C. L. 29, § 22, the rule in cases of emergency, or sudden peril, as affecting one’s judgment, is stated as follows: “Anything which operates to deprive a person of ability to exercise his intellectual powers and guide his acts thereby will relieve him of an imputation of negligence that otherwise might arise from his conduct. Emergencies or sudden perils illustrate this proposition. The rule judicially stated is that one who in a sudden emergency acts according to his best judgment, or who, because of want of time in which to form a judgment, omits to act in the most judicious manner, is not chargeable with negligence.” In Chattanooga El. Ry. Co. v. Cooper, 109 Tenn. 308 (70 S. W. 72), the Supreme Court of Tennessee, held: “Where plaintiff’s decedent was killed by the negligence of the motorman of a street-car while he was attempting to escape from an approaching automobile, he was not debarred from claiming immunity from contributory negligence on the ground that he was placed in a sudden peril, and, losing his self-possession, made a mistake of judgment, by reason of the fact that the peril producing the confusion of judgment and the consequent false effort to escape was not the negligent act of defendant.” And see to the same effect 17 2d Dec. Dig. 122, 72, and numerous cases cited under the title “Acts in Emergencies” on page 71. And see also note to the case of Lemay v. Springfield Street Ry. Co., 37 L. R. A. (N. S.) 55 c, Emergency Caused by Other Agencies.
In the case of Pacetti v. Central of Ga. Ry. Co., 6 Ga. App. 97 (2) (64 S. E. 302), the Court of Appeals held: “Persons confronted by a dangerous situation or by an emergency, or other circumstances likely to impair judgment and ordinary discretion, are not held to the same quantum of care as they would be otherwise.
The Court of Appeals cites in favor of its decision affirming the judgment of the lower court, two cases, Briscoe v. Southern Ry. Co., 103 Ga. 224, and Shroeder v. Ga. Ry. & El. Co., 142 Ga. 173 (supra). We are of the opinion that these two cases are distinguishable from the present case. In the Briscoe case this court held: “No one is entitled to relief from the consequences of neglecting to exercise ordinary care for his own protection and safety because failure to do so arose from an emergency brought about by his own act [italics ours] in voluntarily placing himself in a situation of peril.” In the present case the jury might find
Judgment reversed.
Dissenting Opinion
It is with extreme regret that I feel obliged to dissent from the judgment rendered by my esteemed colleagues. I am forced to dissent for the reason that, in my opinion, the manner of disposing of the case is clearly in violation of the principles
At the beginning of the opinion concurred in by the majority it is said: “The sole question to be determined is whether the Court of Appeals, in affirming the judgment of the trial court in awarding a nonsuit, committed error.” In the first headnote, the majority of the court have said: “Whether such person, who, in such an emergency and in order to avoid being struck by the automobile, jumps toward the street-car and is injured thereby, was guilty of contributory negligence so as to defeat an action for damages, is a question of fad for the jury to determine.” [Emphasis mine.]' In the opinion it is explicitly stated the question is one of fact and “not a question of law.” As I view the case, it is simply an ordinary suit for damages based on personal injuries. After the plaintiff’s evidence was submitted, the court granted a nonsuit. Under the rules and previous decisions, this does not make a case which will authorize this court to grant a certiorari, nor, after granting a certiorari, to decide the question. The proper course would have been to dismiss the writ of certiorari, as improvidently granted. That has been repeatedly done in other eases, and the rule should be uniformly enforced. Certainly the rule should be as uniformly applied and enforced as the nature of the rule permits. The case has been decided on the theory that it involves a question of great gravity and importance to the public. And yet the majority explicitly state that only a question of fact for the jury is involved; that is, whether the injured party so contributed to the injury as to preclude a recovery.
In Lynch v. Southern Express Co., 146 Ga. 68, 71 (90 S. E. 527), this court discussed elaborately whether the direction of a verdict presented a question of law or a question of fact. The principle is the same whether the court directs a nonsuit or directs a verdict. In both instances, the court passes upon the question without submitting any issue to the jury. In the Lynch case the court was dealing with a certified question, and the question required this court to determine the difference between a
From a consideration of the provisions of the constitution appertaining, and from decisions of this court construing the same, it is clear that the intention of the legislature was to permit a review by this court either by writ of certiorari or of certified questions of certain designated character pending in the Court of Appeals. Whether by certified question or by certiorari, it was never intended that litigants who had had the benefit of submitting their
Presiding Justice Evans, speaking for the entire court in the Yesbik case, said: “This court . . should be chary of action in respect to certiorari. . . It was not intended that in every case