51 Ga. App. 728 | Ga. Ct. App. | 1935
Lead Opinion
This was an action for damages on account of injuries caused by the alleged negligence of the defendant in the operation of his automobile, alleged to have occurred on December 23, 1924. Defendant was driving his automobile along Jefferson Street, a public highway and street in the City of Dublin, Georgia, on his left side thereof, that is, “astraddle” of the middle of the street with the left side of defendant’s automobile two or three feet over to the left of the center of the street. Plaintiff was in the act of crossing Jefferson Street, between intersections, passing between two automobiles parked at the curb at an angle of about 45 degrees. One of these cars, a Buick, on plaintiff’s left, was longer than the one on his right, a Ford. Plaintiff was going across the street to his car, which was parked longitudinally some distance down the street to plaintiff’s right, but not directly on the opposite side of the street from the Buick and the Ford. Plaintiff had passed between the two parked automobiles, beyond the end of the Ford; and when he reached the rear of the Buick, he looked up the street to his left to see if any traffic was approaching from that side, his head and right foot being the parts of his body beyond the end
. At the conclusion of plaintiff’s evidence consisting of his testimony and that of other witnesses, the judge on motion of the defendant granted a nonsuit, and the case is in this court to review that judgment.
The exception being to the grant of a nonsuit, it is appropriate to state in the beginning that “In passing on a motion for nonsuit upon, the conclusion of the evidence submitted on behalf of the plaintiff, such evidence should be construed most favorably to him; and if, so construed, a prima facie case for the plaintiff is made out, a nonsuit should be refused.” Henry v. Roberts, 140 Ga. 477 (79 S. E. 115); Henry v. Nashville &c. Ry. Co., 50 Ga. App. 49 (176 S. E. 906). “A nonsuit shall not be granted merely because the court would not allow a verdict for the plaintiff to stand; but if the plaintiff fails to make out a prima facie case, or if, admitting all the facts proved and all legitimate’ deductions from them, the plaintiff ought not to recover, a nonsuit shall be granted.” Code of 1933, § 110-310. “A nonsuit should not be granted when there is any evidence tending to establish plaintiff’s claim, or where the jury can fairly and reasonably infer from the evidence a state of
“A pedestrian and a person with an automobile have each the right to use the public highway, but the right of an operator of an automobile upon the highway is not superior to the right of the pedestrian, and it is the duty of each to exercise his right with due regard to the corresponding rights of the other. The driver of an automobile is bound to use reasonable care and to anticipate the presence on the streets of other persons having equal rights with himself to be there; and a pedestrian, when lawfully using the public highways, is not bound to be continually looking and listening to ascertain if auto-cars are approaching, under the penalty that if he fails to do so and is injured, it must be conclusively presumed that he was negligent.” O'Dowd v. Newnham, 13 Ga. App. 220 (80 S. E. 36); Flowers v. Faughnan, 31 Ga. App. 364 (120 S. E. 670). While it is true that the driver’s right-hand side of the-road or street is customarily and usually the proper side of the road on which to drive his automobile (see 42 C. J. 902, § 611; 29 C. J. 650, § 415), and while under statute in this State “The rule of the road requires travelers with vehicles, when meeting, to turn to the right” (Code of 1933, § 105-112), and this applies to all public streets and highways, the law of the road does not require a traveler to keep to the right in traveling along the street, but applies only in meeting traffic, and in other peculiar or particular circumstance, when the fundamental rule of the exercise of reasonable care for the safety of others is required. One driving an automobile is free to travel along any portion of the street or highway he chooses, and may drive on his own left-hand side thereof when the road is open and other vehicles are not occupying or ap
The plaintiff contended and testified that he was in plain view of the defendant. The defendant himself in his answer, setting up that the plaintiff could have avoided his injury had he exercised ordinary care for his own safety, alleged that he did not see the plaintiff until he was lodged upon the fender of his automobile. The evidence submitted by the plaintiff made an issue for submission to the jury as to whether the defendant was responsible for the plaintiff’s injuries, as claimed. Where in an action for personal injuries there is a question as to whether or not the plaintiff could have avoided the injury to himself by exercising ordinary care, and the evidence does not show such conduct on plaintiff’s part as to amount to negligence per se, the question as to the exercise of ordinary care is for the jury. Dethrage v. Rome, 125 Ga. 802 (54 S. E. 654); Smith v. Smith & Kelly Co., 12 Ga. App. 19 (76 S. E. 770).
It follows that the grant of a nonsuit in this case was erroneous.
Judgment reversed.
Dissenting Opinion
dissenting. While of course I recognize the well-established rule that questions of negligence and diligence, including contributory negligence, and whose negligence was the proximate cause of an injury, are questions peculiarly for the determination of the jury, and can not be resolved by the court by demurrer or otherwise except in plain and indisputable cases, it is nevertheless equally well recognized that where the evidence fails to establish negligence on the part of the defendant, and shows that the injury must necessarily have been unavoidable in the exercise of ordinary care so far as the defendant was concerned, the grant of a nonsuit is not erroneous. See Perry v. Macon Street R. Co., 101 Ca. 400 (29 S. E. 304). In my opinion, it is manifest that unless the defendant was guilty of negligence in driving his car, at the time of the accident, slightly to the left of the middle of the street, under the plaintiff’s testimony the defendant should be absolved from blame. Plaintiff’s own testimony and that of his witnesses all go to show, as stated in the majority opinion, that, as he undertook to cross the street between intersections, and emerged from between two parked cars, one a Buick and the other a Ford, with his foot extending just beyond the Buick, he looked to his left, and as he did so was instantly hit by the left side of the defendant’s car approaching from his right side. In addition to the facts narrated in the majority opinion, plaintiff’s testimony and the diagram prepared and introduced in evidence by him show that the street where the accident occurred was only 32 feet wide. Plaintiff’s own car, which was parked parallel to the curb on the opposite side of the street, according to the diagram was situated about 30 or 35 feet, but according to one of plaintiff’s witnesses only about 15
It is sought to establish negligence on the part of the defendant by reason of the testimony that at'the time of the accident he was driving his car in violation of the “rule of the road,” “astraddle of the center” of the street, so that the left side of the car encroached 2 or 3 feet on the left beyond the center of the street; and because, as contended, under the pleadings and evidence, the defendant in the exercise of ordinary diligence could have avoided the injury by stopping his car. In view of the fact that the act of 1927 (Ga. L. 1927, p. 236), embodied in the Code of 1933, § 68-303 (b) was not in force at the time of the injury, and in the absence of proof of any city ordinance requiring the driver to keep his car within the right-hand portion of the street, and in the absence of any proof that at the time of the accident the defendant was meeting any person driving a vehicle from the opposite direction so as to require him to turn his car to the right, as provided by the acts of 1915 and 1921 (Ga. L. Ex. Sess. 1915, pp. 107, 113; Ga. L. 1921, pp. 255, 257), Michie’s Code, 1770(34), 1770(52)), and in the absence of any proof that the defendant just prior to the injury had not been engaged in, passing another moving vehicle traveling in the same direction, so as to require him, in compliance with the statutes last mentioned, to turn his car “to the left- side of the vehicle overtaken,” and in the absence of any proof that the defendant’s driving of his car “astraddle of the center” of the street was in violation of any universal custom or “rule of the
Concurrence Opinion
concurring specially. The evidence as I construe it authorizes the inference that the defendant, at the time of the accident, was traveling only eight miles an hour, and could have seen the plaintiff after the plaintiff had come from behind the parked car and in view of the defendant, and that the defendant in the exercise of due care under the .circumstances could have seen the plaintiff in time to stop and to avoid the accident, and that the injuries to the plaintiff were proximately caused by the defendant’s negligence. For this reason alone I am of the opinion that the evidence was sufficient to authorize a finding for the plaintiff, and that the court erred in granting a nonsuit.