132 Ga. 606 | Ga. | 1909
C. E. Young, while riding a bicycle, was injured in a collision with an automobile driven by its owner, Dr. H. H. McGee. He sued Dr. McGee for damages, and obtained a verdict which the court refused to set aside, and the defendant brings error. Judge Cann, who presided at the trial, shortly thereafter resigned, and the motion for new trial was refused by his successor, Judge Charlton.
The scene of the collision was in Savannah, on Drayton street, at the intersection of Hall street.- Drayton street extends north and south, and the roadway between the curbing is 28 feet. There is a row of large oak trees on the east side, occupying a part of the roadway near the curbing. At the time of the occurrence under investigation a watering cart was stationed in the street just outside the trees. The plaintiff, who was riding a bicycle, was on the east side of the street, and was going northward, and the defendant was driving his automobile southward on the west .side of the street. On the trial the plaintiff testified that before lie reached Hall street he observed the defendant’s automobile coming from the opposite direction. Just as he was approaching Hall street he observed that the defendant began to turn his automobile into Hall
“I further charge you .that the rule of the road, as established by the laws of Georgia, requires travelers with vehicles, whether carts, wagons, automobiles, or bicycles, when meeting, to each turn to the right, and that it was the duty of the plaintiff to know and observe the rule of the road. Persons using the public streets, as conscious human agents, are bound to exercise their faculties of seeing and hearing, and are further bound to exercise ordinary care to avoid the consequences of the negligence of others who are using the public streets, by either remaining away or getting out of the way of probable or known danger after they discover it, if in the exercise of ordinary care and prudence they should discover it. If a person voluntarily assumes a risk or does a thing in a dangerous way which can be safely done, he assumes the risk of what he does, and if an accident occurs and injury results to him in consequence thereof, he can not recover; and in this connection I charge you that if you find from the evidence that the plaintiff’s injuries were occasioned, wholly or in part, by his violation of the rule of the road, or in his voluntarily assuming a risk or in doing a thing in a dangerous way which he could have done in another way in safety, he can not recover. If you find that the plaintiff’s injuries were not occasioned by the negligence of the defendant, he can not recover. The evidence must affirmatively show that the plaintiff is free from fault; otherwise he can not recover.
“If you should find from the evidence that the defendant was negligent, but that the plaintiff had a clear chance to avoid the defendant’s negligence, but assumed the risk to himself occasioned thereby, such conduct on the part of the plaintiff is not merely contributory negligence, which will lessen the amount of his recovery, but is such a failure to avoid .danger as will defeat his right to recover at all.”
With regard to the argumentative instruction that the jury are the judges of the facts, 'and must apply the facts to the law as pronounced by the court, we have only to observe that it is perfectly proper for a judge to remind the jury that in civil eases they are bound to take the law from the eóiirt, but a trial judge should not be forced by a written request, in every ease, to enter into an argumentative statement of the reasons upon which the rule rests. We
Judgment affirmed.