Opinion
33963.
DECIDED MAY 9, 1952.
Action for damages; from Fulton Civil Court — Judge Etheridge. December 5, 1951.
Wesley G. Bailey, for plaintiff.
Marvin G. Russell, Turner Paschal, for defendant.
1-5. No error is shown by the special grounds of the motion for a new trial.
6. The evidence authorized the jury to find that the parties were equally at fault or that the plaintiff was not entitled to recover, and hence, to return a general verdict for the defendant. The court did not err in denying the plaintiff's motion for a new trial.
DECIDED MAY 9, 1952.
H. H. Roberts sued C. H. Foster for damages to his automobile, sustained in a collision with the defendant's truck. In his petition, the plaintiff alleged: That he was proceeding west on Atlanta Avenue, in Atlanta, Georgia, stopped at a stop sign erected at the intersection of that street with Capitol Avenue, and then proceeded across the intersection in front of a trackless trolley, which had stopped to the plaintiff's right on Capitol Avenue and was preparing to turn left into Atlanta Avenue in the direction from which the plaintiff had come. The plaintiff's car was struck from the right by the defendant's truck. The defendant had been driving behind the trackless trolley on Capitol Avenue and in the same direction; and then, passing the standing trackless trolley on the right side thereof, the defendant approached and entered the intersection at a speed of 45 miles per hour. The petition charged the violation of an ordinance of the City of Atlanta, fixing the speed limit in the area at 25 miles per hour, as negligence per se, and also alleged that the defendant entered the intersection in a negligent manner, so that he was unable to avoid striking the plaintiff's automobile, and that the defendant did not sound his horn or give the plaintiff any warning of his intention to cross said intersection.
The defendant in his answer admitted only the jurisdiction of the court, the time and place of the collision, and the existence of the municipal ordinance pleaded. In his cross-action, the defendant alleged: that, at the time of the collision, he was driving in the right or outside lane of traffic on Capitol Avenue at a speed of 15 to 20 miles per hour; that the trackless trolley, proceeding in the same direction on Capitol Avenue in the inside lane of traffic, next to the center line, stopped at the intersection preparing to turn left into Atlanta Avenue; and that the defendant continued on his course in the right lane of traffic and entered the intersection at the aforesaid speed, when the plaintiff's car, driven at a speed of 25 to 30 miles per hour, entered the intersection from the defendant's left and drove into the left front side of the defendant's truck. The defendant pleaded certain ordinances of the City of Atlanta, providing: that the maximum speed on streets shall be 25 miles per hour; that the driver of a vehicle may overtake and pass upon the right of another vehicle when the vehicle overtaken is making or about to make a left turn; and that the driver of a vehicle shall stop in obedience to a stop sign as required at an intersection where a stop sign is erected at one or more entrances thereto and shall proceed cautiously, yielding to vehicles not so obligated to stop which are within the intersection or approaching so closely as to constitute an immediate hazard, but may then proceed. It was further alleged in the cross-action that the plaintiff was negligent in exceeding the speed prescribed by the city ordinances; in driving his automobile at a speed greater than was reasonable and safe under the circumstances and conditions then existing; in failing to have his automobile under control; in failing to keep a lookout ahead for vehicles proceeding along Capitol Avenue; in failing to give the defendant any notice or warning of his intention to cross the intersection; and in allowing his automobile to collide with the defendant's truck.
Upon the trial of the case, the plaintiff testified that he stopped at the stop sign on Atlanta Avenue at Capitol Avenue; that the trolley, approaching slowly from his right on Capitol Avenue, stopped at the intersection, but could not make the left turn because of the plaintiff's position; that the plaintiff looked both ways and saw nothing but the trackless trolley on Capitol Avenue; and that he proceeded to cross the intersection at a normal rate of speed and was struck by the defendant's truck when he was seven feet from the other side of the intersection.
Grady Daugherty testified: that he was traveling on Atlanta Avenue towards the plaintiff's car; that he stopped at the stop sign on Atlanta Avenue at its intersection with Capitol Avenue and saw the plaintiff stopped on the other side of the street; that the trolley bus came up to the intersection and stopped, as there was not enough room for the bus to go around the plaintiff's car; that the plaintiff came across slowly, about five miles per hour, and was in the intersection first; that the defendant's truck passed the trackless trolley on the right, came into the intersection at between 40 and 45 miles per hour, and collided with the plaintiff's automobile; and that the defendant had ample room to pass the bus. The witness further testified, "I didn't go on across the street when Mr. Roberts [the plaintiff] started, because I had just had my truck fixed and did not want it torn up, so the best way was to stay on our side of the side of the street until traffic cleared up."
The defendant testified: that he had been traveling behind the trolley bus and came up on the right side of the bus because he knew it was going to turn left; that the bus stopped when he got to the front of it; that the plaintiff's automobile then struck his truck and he stopped; that, following the trolley, he had been driving at 15 to 18 miles per hour; that, as he came alongside the trackless trolley, he was going 12 to 15 miles per hour; and that there were no stop signs for cars traveling in his direction on Capitol Avenue. "By the time I seen him, I was three-fourths by the bus, and he was coming up. By the time I applied my brakes, he hit me."
Ira Bartlett, the driver of the trackless trolley, testified: that he was in the center lane of Capitol Avenue, and was going to make a left turn into Atlanta Avenue; that, although there was no stop sign for traffic going in his direction on Capitol Avenue, he made a full stop and, as he did so, the plaintiff came across and collided with the defendant; that he saw the defendant's truck fifteen or twenty feet from the point of the collision, and it could not have been going more than 15 or 18 miles an hour; that the collision occurred two or three or maybe five feet in front of his trolley.
The jury returned a verdict for the defendant, thereby denying a recovery to either party. The plaintiff moved for a new trial, and excepted to the denial of his motion.
1. The first special ground of the motion for a new trial contends that the trial judge erred in failing to give in his charge to the jury Code §§ 68-303 (d), (h), (i), and (j), as both parties alleged that the defendant followed the trackless trolley, passed it on the right, and entered the intersection beyond without stopping; and the movant further states that the failure to charge these Code sections left the jury without the law applicable to the pleadings and the evidence.
It was not error for the trial judge to fail to give in charge Code § 68-303 (d), which provides for passing an overtaken vehicle to the left of such overtaken vehicle, for it was inapplicable. Section 88-916 (4) (1) (a) of the Ordinances of the City of Atlanta provides that the driver of a vehicle may overtake and pass to the right of another vehicle when the vehicle overtaken is making or about to make a left turn. Code § 68-312 provides that "Nothing contained in this law shall be construed as changing or interfering with any regulation or ordinance which has heretofore been or may hereafter be adopted by any municipality, regulating the running or operation of motor vehicles described in this law." The defendant, in passing to the right of the trackless trolley, which he was overtaking as it was about to make a left turn, was doing as he was permitted to do by the city ordinance, and therefore was not required to pass to the left of the overtaken vehicle.
Code § 68-303 (h) is applicable to vehicles passing street cars or buses which have stopped for the purpose of taking on or discharging passengers, but there was no evidence that the trolley bus in this case had stopped for such a purpose. On the contrary, the evidence shows that it had stopped near the middle of the street preparatory to making a left turn. This provision of the State law was inapplicable to the case.
Code § 68-303 (i) provides for reducing speed at intersections, and Code § 68-303 (j) requires the operator of a motor vehicle to sound his horn when approaching points on a highway "where the view of the side of an intersecting highway is obstructed," but it is not shown in this ground of the motion that there were pleadings or evidence raising issues as to whether or not the defendant failed to reduce his speed or to sound his horn, and therefore it is not shown that the trial judge should have given these sections of the Code in charge to the jury. No error is shown by this ground of the motion.
2. The second special ground assigns error on the failure of the court to give in charge to the jury Code § 68-303 (g), which provides that a vehicle on the right at an intersection shall have the right of way, inasmuch as the evidence was uncontradicted that the defendant failed to yield the right of way to a witness, Grady Daugherty, who was to the defendant's right. There was no question or issue in the case as to the right of way between the defendant and the witness, Grady Daugherty, who was stopped on Atlanta Avenue to the defendant's right. As between the parties to this suit, the evidence showed that the defendant was on the plaintiff's right at the intersection; and, under this Code section, the plaintiff should have yielded the right of way to him. Failure to give this section in charge was not prejudicial to the plaintiff, and this ground shows no error against the plaintiff.
3. In the third special ground, the movant contends that it was the duty of the court to instruct the jury that failure to comply with statutory provisions set out in other grounds of the motion was negligence per se, and assigns error on the following instruction: "The jury is instructed, however, that it is not for the court to group together any particular set of facts and characterize either their existence or absence as negligence or as diligence." This charge was not error. It is only an act or omission violating a duly enacted statute or ordinance which is characterized as negligence per se, and it is not for the court to say what does or does not amount to ordinary or common-law negligence.
4. The movant says in special ground 4 that the court should have instructed the jury that, if the plaintiff violated no law in approaching and entering the intersection, he was under no duty to anticipate that the defendant would emerge from the opposite side of the standing bus and come into the plaintiff's path, since the evidence showed that neither party could see the other, as their view was obstructed by the bus. Such a charge would not have been proper or correct, under the facts of this case, and ground 4 shows no error.
5. In special ground 5 the movant complains that the following excerpt from the charge, "That as a direct result of the collision, the defendant shows that his truck was damaged, in that the left front fender was smashed in," could have been understood by the jury as an expression of opinion by the court, and that the word "contends" should have been used instead of the word "shows." This language was taken from the defendant's cross-action, and the trial judge explained before and after his summary of the pleadings that the pleadings were only the contentions of the parties and were not to be considered as evidence. This ground is without any merit.
6. Under the evidence, the jury was authorized to find that the parties both acted on the assumption that the trackless trolley was going to make a left turn; that the defendant accordingly passed to the right of the trolley and entered the intersection and that the plaintiff, after stopping as required by a stop sign, also entered the intersection, as the trolley drew to a stop, and proceeded to cross in front of it. Apparently, the trackless trolley obstructed the view of both parties so that they were unable to see each other until it was too late to avoid a collision. From these facts, the jury was authorized to find that the parties were equally at fault, or that the plaintiff was not entitled to recover, and hence, to return a general verdict for the defendant. The court did not err in denying the motion for a new trial.
Judgment affirmed. Felton and Worrill, JJ., concur.