Opinion
35857.
DECIDED OCTOBER 14, 1955.
Damages. Before Judge Calhoun. Columbus City Court. June 24, 1955.
Young, Hollis Fort, for plaintiff in error.
Swift, Pease, Davidson Chapman, contra.
1. From the evidence adduced upon the trial and the reasonable inferences to be drawn therefrom, the jury was authorized to find that the defendants jointly and concurrently caused the plaintiff's injuries as a result of their gross negligence.
2. Grounds of a motion for a new trial which are expressly abandoned in this court will not be considered.
3. There is no error in a refusal to charge the jury the law of accident, even upon request, when the evidence plainly shows that the plaintiff's injuries were the result of the defendants' negligence.
4. The duty imposed by law upon all persons to exercise ordinary care to avoid the consequences of another's negligence does not arise until the negligence of such other is existing and is either apparent, or the circumstances are such that an ordinarily prudent person would have reason to apprehend its existence, and the trial court does not err in failing to charge the principle of law contained in Code § 105-603 where there is no evidence from which it could be inferred that the negligence of the defendants was apparent to the plaintiff, or should have been reasonably apprehended by her, until it was too late to avoid such negligence.
DECIDED OCTOBER 14, 1955.
Lula Beth Hayes, a minor, by her next friend, brought an action for damages against Harold L. Caudle, who filed no answer or defense, and Horace G. Lawrence, Jr. The material allegations of her petition are substantially as follows: The defendants, due to their joint and concurrent acts of negligence, have injured and damaged the plaintiff in the sum of $15,000. On November 27, 1954, at about 1 a. m., the plaintiff was riding as an invited guest in a Dodge Sedan automobile, which was then being driven by the defendant Lawrence, in a general southwesterly direction over and along Benning Drive, a paved public highway in Muscogee County, Georgia, and the automobile in which she was riding was approaching the intersection of Benning Drive and Victory Drive. Harold L. Caudle was driving a 1953 Mercury automobile in a general southeasterly direction over and along Victory Drive and was approaching the intersection of Victory Drive and Benning Drive. Victory Drive is a divided highway and includes two paved roadways, each of which is approximately 24 feet in width. One of these roadways extends in a general southeasterly direction from Columbus, Georgia, for the exclusive use of vehicular traffic moving in a southeasterly direction. The other of these roadways extends in a general northwesterly direction from Fort Benning towards Columbus and is for the exclusive use of vehicular traffic moving in a northwesterly direction. The two roadways are parallel and separated by a parkway approximately 30 feet in width. Benning Drive and Victory Drive intersect at a point approximately one and one-half miles southeast of the City of Columbus and at this intersection there had been installed, and were in operation at the time in question, two "caution" or "blinker" lights which were illuminated in rapid, intermittent colored flashes. One of these lights was located at the entrance to the intersection from Benning Drive and the other was located at the entrance to the intersection from Victory Drive. There are, and on the date in question were, traffic signs, or markers located in the center parkway of Victory Drive, facing towards Columbus and visible to drivers moving in a southeasterly direction between Columbus and the intersection in question. These signs or markers showed the speed limit over the highway and approaching the intersection to be 20 miles per hour. Harold L. Caudle, as he approached the intersection on Victory Drive, was driving his vehicle at a high, illegal, and unsafe rate of speed, to wit, in excess of 45 miles per hour, and as he approached the intersection failed to reduce his speed and proceed through the intersection with caution. The defendant Lawrence, as he approached the intersection on Benning Drive, failed to stop his vehicle before entering the intersection and continued forward into and partially across the intersection without yielding the right of way to the defendant Caudle who was traveling through the intersection and attempting to cross the intersection. As the two vehicles were attempting to cross, and while in the process of crossing, the intersection, they collided with each other, and as a result of the collision the plaintiff sustained enumerated personal injuries, incurred enumerated medical expenses, and endured great pain and suffering. At the time of the collision, the plaintiff was 20 years of age and in excellent health and physical condition and had a life expectancy of 41.56 years. The proximate cause of the collision between the two automobiles was the joint and concurrent acts of negligence of the two defendants, each defendant being negligent in the manner and degree hereinafter specifically set forth, to wit: (1) The defendant Caudle was guilty of the following acts of negligence: (a) In driving his automobile at a speed in excess of 40 miles per hour as he approached the intersection of Victory and Benning Drives; (b) In driving his automobile at a speed in excess of 20 miles per hour as he approached the intersection in violation of the speed regulations as shown by the signs and markers limiting the speed to 20 miles per hour along the highway; (c) In failing to reduce the speed of his automobile as he approached and attempted to cross the intersection in violation of Code (Ann. Supp.) § 68-1626 (c); (d) In driving his automobile into the intersection and past the caution or blinker light at a rate of speed in excess of 40 miles per hour in violation of Code (Ann. Supp.) § 68-1615 (2); (e) In driving his automobile into the intersection and past the caution or blinker light without exercising precaution to avoid colliding with the automobile driven by the defendant Lawrence in violation of Code (Ann. Supp.) § 68-1615 (2); (f) In failing to control the speed of his automobile so as to avoid colliding with the automobile of the defendant Lawrence as the two vehicles entered the intersection in violation of Code (Ann. Supp.) § 68-1626 (a); (g) In failing to keep a proper lookout ahead and to observe the automobile driven by the defendant Lawrence as it proceeded into and attempted to cross the intersection; (h) In failing to sound his horn as he approached the intersection as a warning to the defendant Lawrence that he intended to drive through the intersection ahead of the defendant Lawrence. (2) The defendant Lawrence was guilty of gross negligence in the following particulars: (a) In failing to stop his automobile as it reached the intersection of Benning and Victory Drives; (b) In failing to reduce his speed as he entered and attempted to cross the intersection in order that the defendant Caudle might cross ahead of him without interference; (c) In failing to yield the right of way to the defendant Caudle, who was approaching the intersection from the defendant Lawrence's right-hand side in violation of Code (Ann. Supp.) § 68-1650 (b); (d) In failing to proceed cautiously into the intersection where traffic is controlled by a caution or blinker light as a warning to drivers entering the intersection from Benning Drive in violation of Code (Ann. Supp.) § 68-1615; (e) In failing to sound his horn, as he approached and attempted to cross the intersection as a warning to the defendant Caudle that he intended to drive his car across the intersection ahead of Caudle's car; (f) In failing to keep a proper lookout ahead and to his right and to observe the Caudle car in time to reduce his speed and avoid colliding with it; (g) In completely ignoring the warning flashed by the blinker or caution light and the State law granting the right of way at the intersection to the defendant Caudle by driving into and attempting to cross the intersection ahead of the defendant Caudle's automobile which was approaching the intersection on Victory Drive.
The defendant Lawrence filed his answer generally denying the allegations of the petition and by amendment added the allegations that any injury sustained by the plaintiff was the result of an accident and that the acts of the defendant Lawrence did not constitute gross negligence.
The jury returned a verdict in favor of the plaintiff and against both defendants in the amount of $3,000. The defendant Lawrence's motion for a new trial, based on the usual general grounds and six special grounds, was overruled and he has brought the present writ of error here to have that judgment reviewed.
1. "`One riding by invitation and gratuitously in another's automobile cannot recover for injuries caused by the other's negligence in driving, unless it amounted to gross negligence.' Epps v. Parrish, 26 Ga. App. 399 ( 106 S.E. 297); Harris v. Reid, 30 Ga. App. 187 ( 117 S.E. 256); Peavy v. Peavy, 36 Ga. App. 202 ( 136 S.E. 96). `In general, slight diligence is that degree of care which every man of common sense, howsoever inattentive he may be, exercises under the same or similar circumstances. Applied to the preservation of property, slight diligence means that care which every man of common sense, howsoever inattentive he may be, takes of his own property. The absence of such care is termed gross negligence.' . . [Code § 105-203]." Frye v. Pyron, 51 Ga. App. 613 ( 181 S.E. 142).
"Questions of negligence and diligence, even of gross negligence and slight diligence, are as a rule to be determined by a jury and should not be settled by the court as a matter of law except in plain and indisputable cases. Rosenhoff v. Schaul, 42 Ga. App. 776 ( 157 S.E. 215)." Rowe v. Camp, 45 Ga. App. 794 ( 165 S.E. 894).
"Where a highway includes two roadways 30 feet or more apart, then every crossing of each roadway of such divided highway by an intersection highway shall be regarded as a separate intersection." Code (Ann. Supp.) § 68-1504 (2b).
"When two vehicles enter an intersection from different highways at approximately the same time the driver of the vehicle on the left shall yield the right of way to the vehicle on the right." Code (Ann. Supp.) § 68-1650 (b).
"Whenever an illuminated flashing red or yellow signal is used in a traffic sign or signal it shall require obedience by vehicular traffic as follows:
"1. Flashing red (stop signal). When a red lens is illuminated with rapid intermittent flashes, drivers of vehicles shall stop before entering the nearest crosswalk at an intersection or at a limit line when marked, or, if none, then before entering the intersection, and the right to proceed shall be subject to the rules applicable after making a stop at a stop sign.
"2. Flashing yellow (caution signal). When a yellow lens is illuminated with rapid intermittent flashes, drivers of vehicles may proceed through the intersection or past such signal only with caution." Code (Ann. Supp.) § 68-1615.
"Whenever the Director of Public Safety and the State Highway Board, upon request from any local authority, or upon their own initiative, shall determine upon the basis of an engineering and traffic investigation that any lawful speed limit hereinbefore set forth is greater than is reasonable or safe under the conditions found to exist on any State highway or upon any part thereof, or upon any extension thereof within a municipality, said Director may determine and declare a reasonable and safe lawful speed limit thereon which shall be effective at all times or during hours of daylight or darkness or at such other times as may be determined when appropriate signs giving notice thereof are erected." Code (Ann. Supp.) § 68-1627.
Under an application of the foregoing rules of law to the facts of this case, the jury was authorized to find from the evidence adduced upon the trial, and the reasonable inferences to be drawn therefrom, that the defendants were grossly negligent in causing the plaintiff's injuries. It appears that the plaintiff was riding gratuitously as a guest in the automobile of the defendant Lawrence as it proceeded on Benning Drive toward the intersections of that highway with Victory Drive, a highway composed of two roadways separated by a parkway 30 feet wide. The first of these roadways to be reached by the defendant Lawrence was for the accommodation of traffic moving in a northerly direction; the second of these roadways was for the accommodation of traffic moving in the opposite direction. The intersections of these roadways with the highway on which the defendant Lawrence was traveling were controlled by flashing traffic signals. The defendant Lawrence was facing a flashing red or stop signal, and the defendant Caudle was facing a flashing yellow or caution signal. The jury was authorized to find that while the defendant Lawrence came to a complete stop at the first intersection, he did not stop at the second intersection as required by law; that Caudle was exceeding the established speed limit of 20 miles per hour along the highway on which he was traveling as he approached the intersection, and that he did not reduce his speed as he approached the intersection; that the two automobiles reached the intersection at approximately the same time, and that without stopping and yielding the right of way to Caudle's automobile, which was approaching the intersection on Lawrence's right, the defendant Lawrence proceeded into the intersection without looking for traffic until it was too late to avoid the collision with the defendant Caudle's automobile. From these findings the jury was authorized to infer that the defendants' negligence jointly and concurrently occasioned the plaintiff's injuries and that under the circumstances each of the defendants was guilty of gross negligence. There is no merit in the general grounds of the motion for a new trial nor in special ground 1 which is but an elaboration of the general grounds.
2. Special grounds 4, 5, and 6 of the motion for a new trial are expressly abandoned in the brief of counsel for the plaintiff in error and are not considered. Code § 6-1308.
3. While the defendant Lawrence in his answer pleaded the theory that the plaintiff's injuries were the result of an accident, there was nothing in the evidence to sustain the plea. The evidence plainly shows that her injuries were due to the negligence of one or the other of the two defendants, or both. The legal connotation of "accident" has reference to unintentional acts occurring without being caused by any negligence of the parties involved. There was no mechanical failure of either of the automobiles and the negligence of the defendants was not unforeseen. The trial court, consequently, committed no error in its refusal to charge the jury on the theory of accident as requested. See in this connection, Toles v. Hair, 83 Ga. App. 144 (2) ( 63 S.E.2d 3); Bush v. Skelton, 91 Ga. App. 83 ( 84 S.E.2d 835); and citations. Special ground 2 of the motion for a new trial is without merit.
4. The evidence reveals that the plaintiff was riding on the front seat with the defendant Lawrence and his wife and that he had been driving carefully up until the instant he negligently entered the intersection without stopping. Neither she nor the defendant Lawrence saw the automobile driven by the defendant Caudle until it was within about 10 feet of them. The plaintiff immediately called out to the defendant Lawrence to stop his automobile, but it was then too late to avoid the collision. There is no evidence from which it can be inferred that she should have apprehended that the defendants would be negligent. "The duty imposed by law upon all persons to exercise ordinary care to avoid the consequences of another's negligence does not arise until the negligence of such other is existing and is either apparent, or the circumstances are such that an ordinarily prudent person would have reason to apprehend its existence." Western Atlantic R. Co. v. Ferguson, 113 Ga. 708 ( 39 S.E. 306, 54 L.R.A. 802); and see also Central of Georgia Ry. Co. v. Larsen, 19 Ga. App. 413 ( 91 S.E. 517), and citations. The trial court, consequently, did not err in failing to charge on the principle of law contained in Code § 105-603 with reference to the plaintiff's duty to avoid the consequences of the negligence of the defendants. There is no merit in special ground 3 of the motion for a new trial.
The trial court did not err in overruling the motion for a new trial for any reason assigned.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.