54 Ga. App. 669 | Ga. Ct. App. | 1936
One who recklessly tests an observed and clearly obvious danger, such as attempting to beat a near and rapidly approaching railroad train or street-car over a crossing, or to pass an intersecting highway in front of a near and speeding automobile having the right of way, notwithstanding his own honest but mistaken judgment that he has ample time to get across, may, under the particular facts, be held to have failed to exercise “that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances” (Code. § 105-201), and to be guilty of contributory negligence which will be deemed the proximate cause of his resulting injury, and. in the absence of wilful or wanton misconduct by the defendant, will preclude nis recovery. In such plain and palpable cases, whenever the pleadings or the evidence so disclose, the courts will so hold as a matter of law, on demurrer, nonsuit, or by direction of a verdict. See, as to railroad and street-car cases, Atlanta Railway & Power Co. v. Owens, 119 Ga. 833 (47 S. E. 213); Thomas v. Central of Ga. Ry. Co., 121 Ga. 38 (48 S. E. 683); Shroeder v. Georgia Railway & Electric Co., 142 Ga. 173, 179 (82 S. E. 553); Anderson v. Collins & Glennville R. Co., 47 Ga. App. 722 (171 S. E. 384); Kirk v. Savannah Electric & Power Co., 50 Ga. App. 468, 470 (178 S. E. 470); Rome Railway & Light Co. v. Barna, 16 Ga. App. 1, 4 (84 S. E. 209); Athens Railway & Electric Co. v. McKinney, 16 Ga. App. 741, 745 (86 S. E. 83), and cit. See, as to automobile cases, Dougherty v. Merchants Baking Co., 313 Pa. 557 (169 Atl. 753); Mercilliott v. Hart, 173 Wash. 224 (22 Pac. (2d) 658, 659); Hittle v. Jones, 217 Iowa, 598 (250 N. W. 689); Hyman v. Salzer Plumbing Co., 18 La. App. 188 (135 So. 703, 138 So. 132); Toyer v. Hilleman, 320 Pa. 417 (183 Atl. 53); Moreau v. Garritson (La.), 166 So. 660. But where the observed approaching danger is not so near or rapid in approach as to render the act of the plaintiff a manifestly foolhardy attempt, such
“An operator of a vehicle shall have the right of way over the operator of another vehicle who is approaching from the left in an intersecting highway, but shall give the right of way to an operator of a vehicle approaching from the right on an intersecting highway.” Code, § 68-303 (g). A violation of this statute is negligence per se. This statute, like similar city ordinances, is applicable not only where two vehicles arrive at intersecting streets or highways “simultaneously or practically at the same time,” but also “where, in consideration of all the circumstances, including the distances of the two vehicles from the intersection and the relative speeds at which they are approaching it, the driver of the vehicle on the left should reasonably apprehend that a collision would occur unless he yields the right of way.” Smeltzer v. Atlanta Coach Co., 44 Ga. App. 53, 56 (160 S. E. 665), 49 Ga. App. 755 (176 S. E. 846). In the latter instance, except in plain and palpable eases, it is for the jury to say whether the described situation existed, so as to render the act or omission of the driver on the left a violation of the right of way statute or ordinance.
“The driver having the right of way at a highway intersection . . ordinarily has the right to assume and to act upon the assumption that drivers of cars approaching and crossing on his left will yield the right of way, and also that they will exercise the ordinary caTe required of them. But even though a driver on the left has failed to observe a right of way statute and is thus guilty of negligence per se, or has otherwise failed to exercise ordinary care in approaching the intersection, this will not render such a driver liable [as a matter of law] for a collision, unless such negligence proximately contributed to the collision. This is true for the reason that such negligence of a driver approaching on the left will not relieve the driver having the right of way of his own legal duty to exercise'ordinary care under the facts and circumstances of the situation. His right of way and right to assume the absence of negligence by others do not entitle him to drive blindly
One who rides on a truck loaded with logs in consideration of an agreement with the driver to help him unload the logs at the destination of the truck, and who has no control or right of control over the operation of the truck, is not engaged in a joint enterprise with the driver, such as will cause any negligence of the driver in a collison with another automobile to be imputed to the rider. Even though the rider would not be strictly a guest, in an action in tort by him against the driver of the other automobile, he would occupy a legal status which would prevent any negligence by the driver from being imputed to him. See Jones Mercantile Co. v. Copeland, 54 Ga. App. 647 (188 S. E. 586), and cit.; Fuller v. Mills, 36 Ga. App. 357 (136 S. E. 807); Cody v. Venzie, 236 Pa. 541 (107 Atl. 383); 42 C. J. 1055-1057.
A boy fifteen years of age, “in the absence of any evidence of want of ordinary capacity in the particular boy, . . should not be treated as a child of ‘tender years,’ but ás a young person who has passed that period and become chargeable with such diligence as might fairly be expected of the class and condition to
The court did not err in this case in overruling a general demurrer to such a petition by a minor, who under the allegations was not engaged in a joint enterprise with the driver or owner of the truck on which he was riding, against the driver of another automobile, since from the averments it could not be held as a matter of law that the negligence of the driver of the truck was the sole proximate cause of the injury, or that the minor himself was guilty of such contributory negligence as would preclude his
Judgment affirmed.