Nowhere in the record is this testimony contradicted. Defendant cites Moorman v. Williams, 103 Ga. App. 726 ( 120 S.E.2d 312) (1961), for the proposition that even if the defendant was negligent, but the consequences of this negligence could have been avoided by the plaintiff's use of ordinary care, then recovery by plaintiff is barred. Here, however, there is no evidence that plaintiff failed to exercise ordinary care.
The rule is in full force in Georgia that the plaintiff cannot recover if by ordinary care he could have avoided the consequences to himself of the defendant's negligence, which he was aware of or could reasonably have discovered ( Code ยง 105-603), as is the rule that to voluntarily encounter known danger amounts to a failure to exercise ordinary care for one's own safety and bars recovery for another's negligence. E.g., Moorman v. Williams, 103 Ga. App. 726 ( 120 S.E.2d 312); Underwood v. Atlanta W. P. R. Co., 105 Ga. App. 340, 361 ( 124 S.E.2d 758); Youngblood v. Henry C. Beck Co., 93 Ga. App. 451 ( 91 S.E.2d 796); DeWinne v. Waldrep, 101 Ga. App. 570 ( 114 S.E.2d 455); Staples v. Brown, 96 Ga. App. 176 ( 99 S.E.2d 526). Thus when both the defendant and the plaintiff are negligent, whether the plaintiff can recover under the comparative negligence rule, or is barred from recovery by the rule of avoidance of consequences or the rule of voluntarily encountering a known danger, depends on the character and time of plaintiff's negligence. I question whether this is fair. The common law contributory negligence rule was simple, but unfair. If the present rules are complex and difficult for judges, one can imagine their impact upon a jury when charged orally by a trial judge.
3. On the first trial of this cause of action, Moorman v. Williams, 103 Ga. App. 726 (1) ( 120 S.E.2d 312), the grant of a nonsuit was affirmed by this court as follows: ". . . the uncontradicted evidence in the case shows that the deceased could, in the exercise of ordinary care, have seen the truck entering into and crossing the public road when the automobile driven by the deceased was approximately 150 yards away, and that he could, by the exercise of ordinary care, have avoided the consequences of the defendant's negligence, if any." The pleadings and evidence are set out in detail in that opinion.