Opinion
46071.
ARGUED MARCH 3, 1971.
DECIDED JUNE 18, 1971. REHEARING DENIED JULY 12, 1971.
Action for damages. Bibb State Court. Before Judge Phillips.
George N. Skene, Martin, Snow, Grant Napier, Cubbedge Snow, for appellant.
Melton, McKenna House, Mitchell P. House, Jr., for appellee.
1. Under the circumstances of this case, the trial judge did not err in refusing to give requests to charge regarding the duty to keep a lookout and to avoid the negligence of another.
2. Where there was unobjected to evidence which would be sufficient to warrant a finding as to speed, argument by counsel and a charge of the court relative thereto were not error.
ARGUED MARCH 3, 1971 — DECIDED JUNE 18, 1971 — REHEARING DENIED JULY 12, 1971.
This appeal arises from an action brought for injuries sustained in an automobile collision. The plaintiff in his complaint alleged he was driving an automobile on Raines Avenue in Macon on the afternoon of December 21, 1969; that the defendant was driving his automobile south on Broadway and entered the intersection of Raines Avenue and Broadway in disobedience of a red traffic light, striking the plaintiff's automobile, after the plaintiff had entered the intersection, and severely injuring him. The defendant was alleged to be negligent in failing to stop before entering the intersection in obedience to the red signal light, in violation of Code Ann. § 68-1612 (Ga. L. 1953, Nov. Sess., pp. 556, 569); in failing to keep a proper lookout and in failing to yield the right of way.
The defendant denied the allegations of negligence and filed a counterclaim against the plaintiff in which it was alleged that the traffic light was green for the defendant and the plaintiff entered the intersection in disregard of the traffic signal and while the defendant was in plain view of the plaintiff.
The case came on for trial before a jury which returned a verdict in favor of the plaintiff for $5,000. The defendant filed a motion for new trial which was overruled and now appeals to this court.
1. Enumerations of error 1 and 2 complain of the trial judge's failure to charge the defendant's written requests. The requests were respectively as follows: (1) "I charge you that every person must exercise ordinary care for his own safety. What is ordinary care under varying circumstances is a question to be determined by the jury. In this connection, I charge you that it is for you to determine whether a driver of an automobile about to enter an intersection which is controlled by a traffic light is in the exercise of ordinary care if he enters that intersection without looking to the right or left to see if there is approaching traffic." (2) "I charge you that the fact that the driver of an automobile is guilty of negligence does not excuse the driver of another automobile from exercising ordinary care for his own safety if, by the exercise of ordinary care, he could have, or should have, discovered the negligence of the other party, if any, in time to have avoided injury to himself. The above rule of law applies both to the plaintiff and to the defendant in this case."
The case of Meeks v. Johnson, 112 Ga. App. 760 ( 146 S.E.2d 121), contains a thorough statement as to the law relative to collisions at intersections and we therefore quote the pertinent language: "A driver having the right of way at an intersection has the right to assume that others will obey the rule of the road and will yield the right of way to him ( Eddleman v. Askew, 50 Ga. App. 540 ( 179 S.E. 247); Lusk v. Smith, 110 Ga. App. 36 ( 137 S.E.2d 734)), and he has the right to proceed at a reasonable speed even though he sees another vehicle approaching. Central Container Corp. v. Westbrook, 105 Ga. App. 855, 862 ( 126 S.E.2d 264). It has also been held that under ordinary circumstances the failure of the driver having the right of way at an intersection to keep a lookout ahead is immaterial since if he had observed the approaching vehicle which was under a duty to yield to him, he would have been authorized to proceed across the intersection notwithstanding its approach. Moffitt v. Dean, 84 Ga. App. 109 ( 65 S.E.2d 637)." See Lindsay v. Duvall, 122 Ga. App. 613 (2) ( 178 S.E.2d 312).
As to the first charge, under the cited authority there is no express duty imposed on the driver of the vehicle with the right of way to keep a lookout for approaching vehicles. The failure to give this charge was not error.
As to the second charge, the evidence in this case reveals that the plaintiff did not see the defendant's vehicle until the collision occurred. Thus, there was nothing to warrant a charge with regard to the duty to avoid a collision after one sees or by ordinary diligence could have seen that one is threatened by the active negligence of another.
2. The remaining enumerations of error involve whether a question of speed was properly injected into the case. Enumeration of error 10 contends that the court erred in permitting the plaintiff's attorney to read the Georgia law and to argue to the jury with respect to maximum speed of motor vehicles and whether the defendant was violating same. Enumeration of error 5 sets out that the court erred in charging the law as to maximum speed of vehicles.
It is clear that the plaintiff did not include in his pleadings specifications that the defendant was negligent in violating the speed law. Nevertheless, as was pointed out in Baxter v. Bryan, 122 Ga. App. 817, 820 ( 178 S.E.2d 724), citing Shockey v. Baker, 212 Ga. 106, 110 ( 90 S.E.2d 654): "Although evidence may be entirely circumstantial as to the rate of speed of an automobile, it may be sufficient to support a reasonable conclusion reached by the jury on the issue of negligence. Evidence of the force of the impact of a collision, or as to the distance which the automobile that caused the injury traveled from the point of the collision until it stopped, may of itself, and in connection with other circumstances, be sufficient to warrant a finding of the jury of negligence as to speed, [Citations omitted]." See Justice v. Bass, 114 Ga. App. 353, 358 ( 151 S.E.2d 511). In this case, there was considerable evidence regarding the speed of the vehicles, as well as the impact of the collision and the distance the vehicles traveled after the collision. Code Ann. § 68-1626 (c) (Ga. L. 1953, Nov. Sess., pp. 556, 577, as amended) provides that: "The driver of every vehicle shall, consistent with the requirements of subdivision (a), drive at an appropriate reduced speed when approaching and crossing an intersection. . ."
Under the Civil Practice Act, Code Ann. § 81A-115 (b) (Ga. L. 1966, pp. 609, 627; 1968, pp. 1104, 1106), "When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." Amendments may be made upon motion of any party at any time but the failure to do so does not affect the result of the trial. Thus, no error appears since the issue covered by the charge and by the argument of plaintiff's counsel was raised by unobjected to evidence. See Johnson v. Myers, 118 Ga. App. 773 (2c) ( 165 S.E.2d 739).
Judgment affirmed. Jordan, P. J., concurs. Evans, J., concurs in the judgment only.