13 Ga. App. 220 | Ga. Ct. App. | 1913
(After stating the foregoing facts.)
Since we are convinced, after a painstaking investigation of the ■record, considered in the light of decisions of courts of last resort in many of our sister States, that the verdict was supported by the evidence and that there was no material error in any of the instructions of the court to which exception is taken, nor in the refusal of the court to give the instructions which were requested, we might dispose of the case by a simple affirmance of the judgment refusing a new trial. However, the points insisted upon by learned counsel for the plaintiff in error are so ingeniously and earnestly urged that they deserve more than a passing notice. Furthermore, the largely increasing use of automobiles, and the fact that the relative duties of automobilists and pedestrians, under a
It may be conceded that the case might be different if O’Dowd and Newnham had both been pedestrians, or if both had been operating automobiles. In such a ease the consideration as to whether each of them exercised diligence, or whether one of them was negligent, or whether both were negligent, would have been governed by the same principles. But considering the facts of the present record in the light of the principles to which we have heretofore referred, there can be no question that Newnham was not negligent, and the jury were authorized to say that the driver of O’Dowd’s automobile was negligent. This took away from O’Dowd the possibility of defending upon the first kind of contributory negligence, and submitted to the jury only the issue as to whether O’Dowd’s ear was operated in such a manner as that the fatality which overtook Newnham could be properly adjudged to have been an unavoidable accident. Newnham was a pedestrian; he had a perfect right to cross the street at right angles, or diagonally. It