Opinion
29867.
DECIDED MARCH 6, 1943.
Damages; from Fulton superior court — Judge A. L. Etheridge. July 30, 1942.
Swift Tyler, W. E. Armistead, for plaintiff in error.
Clark Ray, O'Glen Ray, contra.
The evidence authorizing a verdict for the plaintiff, and no error of law having been committed, the court properly denied a new trial.
DECIDED MARCH 6, 1943.
James L. Crimer brought suit against Jerry Jackson, to recover damages alleged to have been sustained by him from negligence of the defendant in operating an automobile. The petition alleged, that the accident in which the plaintiff, a pedestrian, was struck by the automobile driven by the defendant, occurred just before midnight on March 22, 1941, in the City of Atlanta, on Marietta Street about one hundred feet northwest of where Marietta Street is crossed by North Avenue, and near where certain railroad-tracks cross Marietta Street; that near the place where Marietta Street is intersected by these railroad-tracks, and on the right side of Marietta Street going in a northerly direction, there is a street-car stop and also a crossing over Marietta Street for pedestrians, which crossing is used by the public generally and by people coming from the lumber and coal yards of Randall Brothers; that directly across from this street-car stop there is a gasoline filling-station and cold-drink stand; that the plaintiff who earns his living by selling hot tamales and cold drinks and carries his merchandise from place to place on the streets by pushing a little cart, had just made a sale of cold drinks to some persons in an automobile which was across the street from where his cart was stopped, and while crossing Marietta Street he was struck by the automobile being operated by the defendant, which at the time was travelling northerly on Marietta Street at a speed in excess of sixty miles an hour and to the left of the middle of the street, and which did not stop or slow when it approached the intersection of North Avenue and Marietta Street, and which did not give any warning or signal on approaching the crossing where the plaintiff was walking across Marietta Street; that the defendant was negligent in operating the automobile at a speed in excess of sixty miles an hour, in not giving any warning of the approach of the automobile at the North Avenue intersection or at the place where the plaintiff was struck, by driving the automobile on the left side of the street, and by not having it under control. By amendment the plaintiff alleged that at the time he was so injured the defendant was driving the automobile "at a greater rate of speed than sixty miles per hour, and was approaching a railroad crossing without slowing up and not having his car under control," and that the defendant was driving the automobile "near midnight without having any lights on, and in violation of the State law."
The defendant demurred on the ground that the petition did not set out a cause of action, because it showed on its face that the alleged acts of the defendant were not the proximate cause of the damages claimed to have been sustained by the plaintiff, and because it did not show that the plaintiff was without fault, and did show that by the exercise of ordinary care he could have avoided the injury. The judge overruled this demurrer, and the defendant excepted pendente lite. In the defendant's answer he denied every allegation of the petition, save that the defendant was a resident of Fulton County. He alleged, that he was without fault; that the plaintiff's injuries were the result of his failing to exercise ordinary care in crossing the street where he did so; that there was no public crossing at the point where he attempted to cross; that he was violating the traffic law when he attempted to cross the street not at a crossing, and was guilty of "jay walking" in violation of the traffic ordinance of the City of Atlanta; that the accident was not due to any negligence on the part of the defendant, but was the result of the gross negligence of the plaintiff; and that the plaintiff's injuries were sustained by reason of his negligent and unlawful acts.
On the trial the plaintiff testified, in part, as follows: "In March of last year I was selling hot tamales at North Avenue and Marietta Street. . . About 12 o'clock at night, I walked across the street to get some coca-cola bottles I had delivered to a parked car. A street-car drove up to take on or put off passengers. It was going northwest out Marietta Street. I got out in the middle of the street and looked both ways; and no car coming, and I goes on, and I gets about four feet of the curb on the left side of the street, and I discover a car making, I don't know what speed, and I put my foot on the ground and stepped back, and it hit me on my left side and knocked me I don't know how far. . . There was no lights on the car, and there was no horn blown at all. He did not apply a brake or cut the wheels in any shape, form, or fashion until he hit me, and then he cut across the left-hand sidewalk and ran up into a coal pile behind Peoples Oil Company across the sidewalk. . . Mr. Jackson was driving the car that hit me. That is the defendant here. . . I would say this accident occurred about forty to fifty feet from North Avenue beyond North Avenue on Marietta Street. . . I am just roughly estimating it. . . I would say this occurred around fifteen or eighteen feet this side of the spur-track that goes in there to Randall Brothers. . . There is a car stop on the right-hand side, and a car was stopped there at the present time. . . On this occasion there was an automobile stopped there at this stop sign on the right-hand side of Marietta Street. The car was just beyond the front of the street car on the right-hand side. It was parked just a few feet beyond the car stop. . . Both the street-car and the automobile were pointed north going out from town. . . I passed in front of the parked street-car and attempted to cross Marietta Street at that point. . . While making that crossing was when this accident occurred." The plaintiff also testified that other people, principally the employees of Randall Brothers, frequently cross Marietta Street at this point, to go from the Randall Brothers office to the filling-station and soft-drink stand across the street. He testified in detail as to the exact place where he crossed the street, as to the position of the street-car, and as to the location of the railroad spur-track across Marietta Street, the location of the Randall Brothers office, and the location of the filling-station, which testimony was substantially in support of the allegations of the petition. He also testified as to the extent of his injuries.
A physician testified as to the extent of the plaintiff's injuries. W. C. Hogg testified that he knew the plaintiff when he saw him, and that he saw the accident on Marietta Street in March, 1941. He further testified, in part, as follows: "I was a passenger on a street-car at that time. I was sitting about the third seat from the front of the car on the right-hand side. The fellow walked across the street waiting on some customers, and he walked across just in front of the street-car, and as he passed in front of the street-car the police car came down on the left-hand side of the car and ran over him just as he passed out from in front of the street-car. . . There was not any signal of any kind of that car coming. I could not say definitely whether the lights were on at that time or not, but the lights were off when the car stopped. . . I am experienced with cars, and I would be safe in saying that that car was going fifty miles an hour when it hit him." This witness testified that there was no crossing at this place on Marietta Street; that the street-car had not stopped, and the plaintiff ran across in front of it, and just when he went beyond the street-car the automobile struck him; and that it had been raining and that night was a rainy bad night. He also testified as to the location of the railroad spur-track, and as to the distance of the street-car stop and spur-track from the intersection of North Avenue and Marietta Street.
At the conclusion of the plaintiff's evidence the defendant's motion for nonsuit was overruled. The defendant introduced evidence which tended to show that he was not operating the police car at a speed of more than thirty miles an hour at the time he crossed the Marietta and North Avenue intersection, passed the street-car, and struck the plaintiff. The defendant's evidence tended to show that the defendant sounded the horn of the automobile, and that the headlights were burning. It further tended to show that the plaintiff had been warned about running across Marietta Street at this point by the operator of the street-car in front of which he crossed just before he was struck by the car operated by the defendant. The evidence for the defendant tended to support the allegations of his answer that the proximate cause of the plaintiff's injuries was his own failure to exercise ordinary care, and that the defendant was not negligent as charged in the petition.
No ordinance of the City of Atlanta relative to its being unlawful for persons to cross the streets of such city between intersections, or relative to its being unlawful for an automobile to be driven on the left side of a street-car, was introduced. No ordinance of the city was properly pleaded by either the plaintiff or the defendant.
The jury returned a verdict in favor of the plaintiff. The defendant moved for a new trial on the general grounds and on six special grounds, five of which were but amplifications of the general grounds. In ground 6 the defendant assigned error on an excerpt from the charge to the jury, which is dealt with in the opinion. The judge overruled the motion, and the defendant excepted, assigning error also on the overruling of the demurrer and of the motion for nonsuit.
1. The petition was not subject to general demurrer. The defendant contends that while the plaintiff alleged that at the time he was struck by the automobile he was crossing Marietta Street at a place where employees of Randall Brothers and the public in general frequently cross, it affirmatively appeared from the petition that this place was not a public street crossing, because the petition showed that the regular street crossing at the intersection of Marietta Street and North Avenue was "about 100 feet" therefrom, and therefore that the petition properly construed shows that the plaintiff was attempting to cross Marietta Street at a place not designated as a crossing for pedestrians by the city, and was a "jay walker." The defendant contends that for this reason it appeared from the petition that the plaintiff was injured while attempting to cross the street at a point prohibited by law, and that he was not exercising ordinary care but was grossly negligent, which negligence caused his injury. The petition is not subject to the construction placed thereon by the defendant.
The petition was not subject to the general demurrer because it appeared therefrom that the alleged negligence of the defendant was not the proximate cause of the plaintiff's injuries. The plaintiff alleged that as he was crossing Marietta Street he was struck by an automobile operated by the defendant, which was being driven at a high rate of speed and to the left of the middle of the street, that it did not give any signal or warning either in approaching the near-by street intersection or in approaching the crossing where the plaintiff was walking across Marietta Street, that the defendant was negligent in so operating the automobile, and that the plaintiff's injuries were directly caused by such negligence. The petition as amended was not subject to general demurrer for the reason, as urged by the defendant, that the plaintiff "does not show that he was without fault, and does show that by the exercise of ordinary care he could have avoided the injuries complained of." A plaintiff is not required to show in his petition that he was free from fault, or that by the exercise of ordinary care he could have avoided injury. This would be a matter of defense. See Collins v. Augusta-Aiken Railway Cor., 13 Ga. App. 124 (2) ( 78 S.E. 944); Western Atlantic Railroad v. Reed, 33 Ga. App. 396 (2) 400 ( 126 S.E. 393).
2. The defendant, on the overruling of his motion for nonsuit, elected to continue with the trial, and introduced evidence in support of his answer and in refutation of the plaintiff's cause. One ground of the motion for new trial is that the verdict was not supported and was unauthorized by the evidence. "Under repeated rulings of the Supreme Court and of this court, an assignment of error on a refusal to grant a nonsuit will not be considered where the case proceeds to verdict and judgment in favor of the plaintiff, and thereafter the defendant makes a motion for a new trial in which he alleges that the verdict was unauthorized by the evidence." West v. Cunningham, 43 Ga. App. 581 ( 159 S.E. 748); Massell Realty Co. v. Hanbury, 165 Ga. 534 (9), 557 ( 141 S.E. 653).
3. No municipal ordinance of the City of Atlanta was properly pleaded or introduced in evidence. Therefore this court does not have for consideration the questions whether the defendant, in operating the police automobile, drove to the left of a street-car in violation of a city ordinance, and whether the plaintiff, in crossing Marietta Street at the place where he was struck by the automobile, was violating an ordinance which prohibited persons from crossing between intersections. The jury were authorized to find that the defendant operated the automobile at a speed of fifty miles an hour, and that no horn or other signal was given either as the automobile approached the Marietta and North Avenue intersection or as it approached the place where the plaintiff was crossing Marietta Street. The jury was authorized to find that the defendant was negligent in operating the automobile at the time it struck the plaintiff. A pedestrian and a person operating an automobile have each equal rights to use a public highway or street, 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 persons having equal rights with himself to be there; and a pedestrian, when lawfully using public highways or streets, is not bound to be continually looking and listening to ascertain if an automobile is approaching, under the penalty that if he fails to do so and is injured, it must be conclusively presumed that he was negligent. See Flowers v. Faughnan, 31 Ga. App. 364
(120 S.E. 670). While it is true, as a general rule, that one driving an automobile is free to travel along any portion of the street he chooses, and may drive on his own left side of the street when the road is open and other vehicles are not occupying or approaching on that side, and when such use of the street does not infringe on the rights of pedestrians and others who have an equal right to the use thereof, without being chargeable with negligence as a matter of law because of the mere fact that he is on the left side of the street, yet one who is driving on his left side must generally exercise more care than if he were on the right side of the street; and if a person operating a motor vehicle chooses, on a dark, rainy night to use the left side of the street, it is his duty to be on the alert, and to exercise care and caution to prevent injury to others lawfully entitled to use the street. See Eubanks v. Mullis, 51 Ga. App. 728 ( 181 S.E. 604). It has been held that where there is an accident and a pedestrian is hit by an automobile which at the time is being operated on its left side of the road, the presumption is against the driver of the automobile. See McGee v. Young, 132 Ga. 606 (4), 608 ( 64 S.E. 689); 42 C. J. 907.
The driver of an automobile has no right to assume that the road is clear, but must keep a vigilant lookout ahead for pedestrians and traffic, particularly at places where the conditions are such that there are reasons for anticipating the presence of pedestrians, or where he is driving over that portion of the street which is usually used by automobiles going in the opposite direction. A pedestrian has a right to use the street, and in the absence of a statute or a municipal regulation to the contrary he may cross wherever he wishes, without being guilty, for that reason alone, of negligence; and a pedestrian in crossing a street is under no duty as a matter of law to look for automobiles traveling on their left side of the street. It has been held that while a pedestrian is required to be on the lookout, "he has the right to assume that the drivers of all automobiles are on the lookout for him too; and if he is properly upon the public highway, which he is entitled to use equally with them, he has the right to assume that they are both willing and able to regard his rights." See O'Dowd v. Newnham, 13 Ga. App. 220, 227 ( 80 S.E. 36). "A pedestrian being entitled to use any part of a highway or street for the purpose of travel (in the absence of any governmental regulation to the contrary), he may cross the street at any place he desires, if he uses due care, and is not restricted to public crossings, and the operator of an automobile must therefore anticipate the possibility that pedestrians may cross the street between intersections." Eubanks v. Mullis, supra. The evidence did not demand a finding that the plaintiff was injured by reason of his own negligence in attempting to cross Marietta Street at a place where there was no public crossing. The jury were authorized to find that had it not been for the negligence of the defendant in the operation of the police car the plaintiff would not have been injured. The verdict for the plaintiff was authorized.
4. Assuming, but not deciding, that the judge incorrectly charged the jury as follows: "Having used this term `proximate cause' it becomes important for you to know what, in law, is meant by that term. Negligence, to be the proximate cause of injury, must be such that a person of ordinary caution or prudence would have foreseen that some injury would likely occur therefrom, not that a specific injury would result," it does not appear that any harm resulted to the defendant therefrom. It follows that the above excerpt, even if it were error, would not require a new trial.
5. The evidence authorizing the verdict, and no error of law having been committed, the court properly overruled the motion for new trial.
Judgment affirmed. Sutton and Felton, JJ., concur.