Opinion
37002.
DECIDED APRIL 10, 1958.
Tort; pedestrian injured by automobile. DeKalb Superior Court. Before Judge Hubert. November 6, 1957.
Reuben A. Garland, J. Walter LeCraw, for plaintiff in error.
B. Hugh Burgess, Greene Neely, contra.
1. The disallowance of an amendment setting up a custom which was contrary to law was proper.
2. The evidence authorized a verdict for the defendant under the case as laid even though another cause might have appeared from the defendant's testimony.
3. In charging Code § 105-603 it was not error, in the absence of request, for the court to fail to instruct the jury that the duty of the plaintiff to avoid the defendant's negligence does not arise until the negligence of the defendant becomes apparent, or an ordinarily prudent person would apprehend its existence.
4. Ordinarily exclusion of evidence as to the extent of the plaintiff's pain and suffering is not reversible error when the jury finds in favor of the defendant. The rule is applicable where competent evidence of the plaintiff's pain and suffering and other elements of damages claimed by him is admitted, and the jury finds generally for the defendant.
DECIDED APRIL 10, 1958.
Archie A. King sued Thomas E. Harmon for damages for personal injuries allegedly resulting from the negligence of the defendant in driving his automobile against the plaintiff. The petition alleged, "4. Memorial Drive is a public street of the City of Atlanta, Fulton County, Georgia, running in the general direction of east-west. 5. In the 800 block of said street, the tracks of Atlanta West Point Belt Line cross said street, running north and south. 6. At said point, said street has three (3) marked traffic lanes. 7. The south lane of said street carries east-bound traffic and the north lane carries west-bound traffic. 8. The middle traffic lane of said street is used for passing. 9. On March 15, 1956, at or around 4:50 p. m. o'clock, your petitioner was standing off the south side of said street, west of said tracks, intending to cross Memorial Drive. 10. At said time, it was raining. 12. An approaching east-bound motorist, whose name is unknown to plaintiff, had stopped in the east-bound lane to permit the plaintiff and other pedestrians to cross and had motioned for them to cross in front of said car. 13. The other pedestrians proceeded to cross and the said motorist motioned for petitioner to cross, so that petitioner stepped out in front of said car and when he had crossed the east-bound lane and was in the middle lane, he was struck with great force and violence by a 1952 Ford, traveling east on Memorial Drive. 14. The driver of the Ford that struck your petitioner was the defendant Thomas E. Harmon. 15. Prior to striking plaintiff, Harmon had driven his car in the same lane as aforesaid motorist who stopped, that is to say, the east-bound lane. 16. As defendant approached said standing vehicle and when petitioner had reached the middle lane, defendant, without any warning and without looking to see whether the way was clear, suddenly swerved his Ford, passed the standing car, and struck your petitioner as aforesaid. 17. Prior to striking plaintiff, defendant failed to keep a lookout ahead and he failed to apply his brakes or stop his car. 18. At said time, defendant failed to keep said Ford under immediate control. 27. At said time the following duly enacted ordinance of the City of Atlanta was in force: `Sec. 30.40. Driving on Roadways Laned for Traffic. Whenever any roadway has been divided into two or more clearly marked lanes for traffic, a vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.' 28. Defendant was guilty of the following acts of negligence in the premises: (a) In failing to remain in the east-bound lane on Memorial Drive rather than turning into the middle lane at said time. (b) In failing to keep a lookout ahead. (c) In failing to look out to see whether the way ahead was clear for him to pass said standing car. (d) In moving from the east-bound lane to the middle lane prior to keeping a lookout to see whether the movement could be made in safety, same being negligence per se in violating Section 30.40 of the Code of Ordinances of the City of Atlanta, as herein set out. (e) In failing to sound some warning by horn prior to passing said standing vehicle. (f) In failing to apply his brakes prior to striking plaintiff. (g) In failing to stop prior to striking plaintiff. (h) In failing to have said Ford under immediate control at said time and place."
During the trial of the case the plaintiff proffered the following amendment: "Said place where plaintiff was knocked down by said defendant as in his petition set forth was at a place in the middle lane of Memorial Drive and was in a place where pedestrians usually walk and where plaintiff was walking at said time as aforementioned," which was disallowed. The jury found for the defendant. The motion for new trial filed by the plaintiff, as amended, was denied and the plaintiff excepts to the disallowance of the amendment and the denial of the motion for new trial.
1. It was not error for the court to disallow the amendment. The plaintiff's evidence showed without dispute that the plaintiff was attempting to cross the street where crossing was prohibited by a valid ordinance of the City of Atlanta. To permit the nullification of a valid law or ordinance by a custom would undermine the very foundation of our government. If the law precludes a custom from becoming a part of a contract if the custom is contrary to law the same principle would apply with even greater force here. See American Mutual Liability Ins. Co. v. Curry, 187 Ga. 342, 358 ( 200 S.E. 150).
2. The court did not err in denying the motion for new trial as amended. The evidence authorized the finding for the defendant under the allegations of the petition and evidence in support thereof.
The plaintiff's evidence tended to support this contention, while not all of his witnesses were in agreement as to the details of the occurrence. The defendant's evidence was to the contrary. The defendant testified that on the afternoon of the collision he was driving along Memorial Drive in the center lane of south-bound traffic at a lawful speed and in a prudent manner; that he did not switch from one lane of traffic to another or undertake to pass around an automobile that preceded him; that no automobile stood at the curb, but that all the vehicles that approached the locus of the accident from the direction in which he was traveling were in motion; that it was a rainy afternoon and water flowed in the street along the centre; that the plaintiff whom he observed on the south curb suddenly sprang from the same and undertook to cross the street in a run ahead of the slow moving traffic; that the plaintiff had an umbrella over his head as he suddenly emerged from in front of the automobile to the defendant's right within about eight feet of the front of his automobile; that though he applied his brakes and made an effort to stop he could not avoid striking the plaintiff, but that he stopped the automobile immediately thereafter and within several feet.
The fact that the plaintiff committed a violation of a public statute in crossing the street did not necessarily bar his right of recovery. Central of Ga. Ry. Co. v. Larsen, 19 Ga. App. 413, 419 ( 91 S.E. 517). But the jury was authorized to find that the manner and circumstances of his crossing was the sole cause of his own misfortune.
The plaintiff must recover on his case as laid, and when it is not proved, or precludes recovery, it is immaterial that another cause of action appears from defendant's testimony. Augusta Ry. c. Co. v. Weekly, 124 Ga. 384 ( 52 S.E. 444); Burdette v. Crawford, 125 Ga. 577 ( 54 S.E. 677); Livsey v. Ga. Ry. c. Co., 19 Ga. App. 687 ( 91 S.E. 1074); Finley v. Coastal Chevrolet Corp., 64 Ga. App. 489 ( 13 S.E.2d 683); Dixie Ornamental Iron Co. v. Parrish, 91 Ga. App. 11 ( 84 S.E.2d 716); Parsons v. Shinall, 52 Ga. App. 144 ( 182 S.E. 624); Evans v. Sears, Roebuck Co., 49 Ga. App. 744 ( 176 S.E. 843).
Therefore, the plaintiff's contention that he was entitled to recover on the theory of the last clear chance doctrine deducible from the defendant's testimony which showed that the plaintiff did not proceed from a position in front of a car that had parked to let him cross, but proceeded from the curb and that he saw him from the time he left the curb and that he did not put on his brakes until he hit him is not supported by the evidence.
3. There are four special grounds of the motion for new trial, number 4, 5, 6 and 7.
Grounds 4 and 5 of the amended motion for new trial are controlled adversely to the movant by the rule pronounced in numerous opinions among which is Maner v. Dykes, 55 Ga. App. 436, 443 ( 190 S.E. 189), "`If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover.' Code § 105-603. While it is true that no duty to exercise ordinary care arises until the negligence of the defendant becomes apparent, or the ordinary person would apprehend its existence. ( Augusta-Akin Ry. c. Co. v. Jones, 15 Ga. App. 93, 82 S.E. 665), a charge that substantially complies with the Code section is sufficient, and it is not error to fail to give the principle as stated in the Jones case, supra, in the absence of a special request."
4. Grounds 6 and 7 of the amended motion for new trial complain of the exclusion of evidence which related solely to the extent of the plaintiff's pain and suffering alleged to have been caused by the defendant's negligence.
The record shows that other evidence as to the plaintiff's disability, pain and suffering was admitted and that the verdict was in favor of the defendant. In this situation the grounds show no reversible error. McBride v. Ga. Ry. c. Co., 125 Ga. 515 (1) ( 54 S.E. 674).
Judgment affirmed. Nichols, J., concurs. Felton, C. J., concurs specially.
I think the evidence demanded the finding that the plaintiff could have discovered and avoided any negligence on the part of the defendant by the exercise of ordinary care.