Tyson v. Shoemaker

Full title: TYSON v. SHOEMAKER

Court: Court of Appeals of Georgia

Date published: Nov 22, 1950

83 Ga. App. 33 (Ga. Ct. App. 1950)

62 S.E.2d 586

Opinion

33079.

DECIDED NOVEMBER 22, 1950. REHEARING DENIED DECEMBER 15, 1950.

Damages; from Grady Superior Court — Judge Crow. March 10, 1949.

Bell Baker, Neely, Marshall Greene, for plaintiff in error.

Cain Smith, contra.

1. Under the statute (Code, §§ 68-303 (g), 68-303 (i), "An operator of a vehicle shall have the right of way over the operator of another vehicle who is approaching from the left in an intersecting highway," but before exercising this right must reduce his speed in approaching the intersection.

( a) This rule is applicable within a municipality.

( b) A stop sign which requires the operator of an automobile, having the statutory right of way at an intersection within a municipality, to come to a complete stop must be one erected and maintained by proper legal authority, and in such a case the automobile after so stopping has the right of way, in proceeding into the intersection, as against a vehicle coming from the left.

( c) A municipal ordinance providing for a stop sign and requiring the operator of a vehicle to come to a complete stop at an intersection must be pleaded and proved where relied upon in a given case.

( d) A failure to yield the right of way to one entitled to it is negligence per se.

( e) Where is was not pleaded and proved that the stop sign here involved was erected and maintained in pursuance of a valid municipal ordinance, the jury was authorized to find from the evidence that the defendant's truck driver failed to yield the right of way to the plaintiff, who was entitled to exercise it at the intersection within the municipality after having reduced his speed in approaching it, and that this negligence was the proximate cause of the plaintiff's injury and damage.

2. The fourth special ground of the motion for new trial is not complete within itself and can not be considered. Ground 7 was expressly abandoned, and the other grounds are without merit for reasons stated in the opinion, infra.

3. The court did not err in disallowing the two amendments of the defendant.

DECIDED NOVEMBER 22, 1950. REHEARING DENIED DECEMBER 15, 1950.

J. S. Shoemaker filed in the Superior Court of Grady County, Georgia, a petition against W. M. Tyson, trading as W. M. Tyson Lumber Company, alleging substantially as follows: On or about February 3, 1947, a log truck owned by the defendant and heavily loaded with logs and operated by the defendant's agent, whose name the plaintiff is unable to give, and while the said agent was in the prosecution of the defendant's business and acting within the scope of his employment, ran into the plaintiff, who was at the time traveling in an automobile owned by him, at the intersection of North Broad Street and State Highway 38 at what is known as Triangle Acres in the northern part of Cairo, Georgia, at 3 o'clock p. m. The defendant's truck was traveling east and the plaintiff was traveling north and was entering the said intersection when he saw the said truck approaching the intersection at a high rate of speed of 40 to 50 miles an hour, which was a dangerous speed for the said intersection. The intersection is where the Thomasville-Bainbridge highway 38 crosses North Broad Street and the Cairo-Pelham highway. The traffic at this point is congested and the intersection or crossing is dangerous, and a speed in excess of 15 miles an hour for a heavily loaded log truck such as was being operated by the defendant at the time is unsafe and negligent. The defendant's driver saw, or by the use of ordinary care could have seen, the plaintiff at all times after the defendant's truck was within 300 to 400 feet of the said intersection. The plaintiff had stopped for the intersection and was barely moving at the time and was on his side of the street when the defendant's said agent cut the truck sharply to the right, passing in front of the plaintiff's car, when the load of logs on the truck began spilling into the highway, some of the logs being driven into the plaintiff's automobile and others falling on top of the car, completely demolishing it and inflicting serious injuries on the plaintiff. The plaintiff was rendered unconscious, was forced to remain in bed for three or four weeks, and was unable to attend to any business for two months. The said truck was heavily loaded, having thereon logs weighing ten tons or more, which made the truck unsafe for operation on the public highways, and the logs were not securely tied or fastened on the truck with chains to prevent them from falling off the truck.

The petition detailed wherein the plaintiff was permanently injured and further alleged the following: Before his injury the plaintiff was an able-bodied man, lived an active life in operating a sawmill, and earned $10,000 per year. As a result of his said injuries his earning capacity has been reduced by 50 percent or more. By reason of his injuries the plaintiff has incurred expense for doctors, medical, hospital and nursing in the sum of $500, his automobile of the value of $1500 was completely demolished, he was unable to attend to business for two months and by reason thereof was damaged in the sum of $2000, all of which was the result of the said injuries, and the plaintiff has suffered and continues to suffer great bodily and mental pain and will continue to suffer for and during his life.

At the time of the accident hereinbefore referred to the plaintiff was traveling north and the defendant's truck was traveling east, and the defendant's driver negligently violated § 68-303 (g) of the Code of Georgia by failing to yield the right of way at the said intersection to the plaintiff, who was at the time on the right of the defendant's truck and the said act of negligence was the proximate cause of the plaintiff's damages.

It was alleged that the defendant, through his agent and employee, was negligent in the following manner and that such negligence was the proximate cause of the injuries complained of: (a) in driving at an excessive rate of speed of between 40 and 50 miles per hour in violation of the city ordinance; (b) in failing to reduce speed in approaching the intersection; (c) in failing to reduce speed in approaching the intersection and permitting the plaintiff to pass through it in safety, the defendant's agent having an open and unobstructed view thereof for several hundred feet and being able to see the plaintiff approaching and entering the intersection; (d) in operating the truck on the highway when it was overloaded; (e) in operating the truck when it was heavily loaded with logs not securely fastened to prevent them from falling into the highway.

It was also alleged that the defendant was guilty of negligence proximately causing the petitioner's injuries and damages, as follows: (f) in not using two heavy chains around each end of the logs and around the body of the truck, securely bucked and fastened, and not less than 3/8 of an inch in size, the defendant actually hauling the load of logs with only one small chain around the logs, around the middle of the load, and the chain being badly worn, the exact size of which the plaintiff, for want of information, can not give, but shows that it was not more than one-third the size of the chains that should have been used, by reason of which negligence the load of logs was unsafe and a menace to those traveling the highway; (g) in not securely fastening with chains the upright standards on either side of the truck, the same being wholly insufficient to hold the logs in place, by reason of which negligence the standards of the left side of the truck came out, leaving no support for the logs on the truck, said acts being negligent on the part of the defendant and rendering the load of logs unsafe and a menace to those using the said highway.

By reason of the allegations of the petition the plaintiff is entitled to recover of the defendant for his bodily injuries, including reduced earning capacity, mental pain and suffering, and permanent injuries which include expenses incurred by him for doctors, medical, hospital and nursing and loss of time from his business, the sum of $10,000, and he is entitled to recover the further sum of $1500 for his automobile which was completely demolished, the market value being $1500, the total damages claimed being $11,500.

The defendant filed an answer denying the material allegations of the petition and setting up his plea as follows: The injuries and damage of the plaintiff were proximately caused by his own negligence. The truck driver was in the exercise of ordinary care at the time and place in question, operating the truck at approximately 15 miles an hour on highway 38 when without notice or warning, as the truck approached within a few feet of the point or place where North Broad Street flows into the said highway, the plaintiff suddenly, and continuing an unabated speed of approximately 25 miles an hour, drove his automobile across the center line of the highway and athwart the north travel lane down which the truck was traveling, rendering it impossible for the driver of the truck to avoid striking the automobile except for one possible movement, to swerve the truck very sharply and radically to the right and attempt to go down Broad Street. In the emergency thus created by the plaintiff's gross negligence the truck driver undertook to so maneuver the truck and would have completely avoided the automobile except that the stress and strain brought about by such radical turn caused a chain holding the logs firmly in place to break or snap, whereupon centrifugal force dumped the logs over, upon and against the plaintiff's automobile, causing damage to it and injuries to the plaintiff, all of which was the proximate result of the plaintiff's failure to exercise ordinary care at the time and place. As required by Georgia law, the State Department of Public Safety, in conjunction with the State Highway Department, had designated State road 38 as a through highway, and pursuant thereto the State highway maintenance department had erected a sign on the east side of North Broad Street and just south of the right of way of the highway, showing that the highway was a through highway and having the word "stop" thereon to give warning that any vehicle approaching the highway from the south should come to a stop before entering or crossing the highway. The plaintiff altogether disregarded this sign and entered the highway at unabated speed and crossed to the line of travel of the defendant's truck and block its path in the manner aforesaid without any notice or warning, which negligence of the plaintiff was the proximate cause of his damage and injuries. It was the duty of the plaintiff under the law to extend his hand and arm horizontally from and beyond the left side of his vehicle before coming into the highway from North Broad Street and before making the left turn required thereby, and the plaintiff altogether failed to give any kind of signal to indicate that he was about to come into the said highway, which failure was the proximate cause of his damage and injuries.

The defendant's log truck was at the time loaded with logs in the usual and customary manner, with only a normal weight of logs, securely tied and fastened on the truck with the kind of chains usually and customarily used by sawmill operators in transporting logs to a sawmill, and under any usual or ordinary conditions the chains would have confined and retained the logs on the truck while it was being operated on the highway, and it was only as a result of the emergency and extraordinary situation created by the negligence of the plaintiff hereinbefore described that the chains became broken and the logs fell off, for which the plaintiff is solely responsible.

Upon the trial of the case the evidence, in so far as necessary to a decision, may be stated as follows:

J. S. Shoemaker, the plaintiff, testified: "On that occasion [when he went from his home in Whigham, Ga., to Cairo, Ga.] I had started back to Whigham in my car traveling north, and had gotten as far as Triangle Acres [where the Bainbridge-Thomasville highway 38 cross North Broad Street and the Cairo-Pelham highway], out in the northern part of Cairo. At that time I saw a truck loaded with logs coming down the highway. It looked to me like it was coming in here to Cairo. It was coming from towards Whigham [on the Bainbridge-Thomasville highway 38 on the left], and was on the Whigham highway. It was coming towards Cairo and I was going towards Whigham. I slowed down there and started to cross the crossing, and it looked to me like he was turning in the way I was, and I made a dart then to get around him and made it around him and the last thing I remembered I was right even with his cab. . . I did not hit the log truck with my car. Neither did the log truck hit my car. Before I slowed down for the intersection I was going 15 or 20 miles an hour, but I slowed down slower than that. . . I might have been making 20 miles an hour when I was getting around him. When I slowed up for the intersection I slowed down until I was just moving. Then it looked like he was coming in on me, and so I made a dash to get around him. When I made that dash I was in second gear. [At this point the witness exhibited to the jury injuries about his head, and testified as to his resulting disabilities.] . . As to whether I know of my own personal knowledge how long I stayed in the hospital at the time of my injury — I know I was in there Friday and I left out Sunday, but I don't know when I was put in there. As to what my condition was while I was in the hospital — I had a head injury. . . I did not know anything until Friday. . . I mean that from Monday until Friday I did not know anything. I became conscious on Friday and left the hospital on the following Sunday. . . This accident took place around 2 o'clock in the afternoon. . . I am over Cairo probably two or three times a week. I had traveled that route out there many times before this accident. On this particular afternoon as I went up North Broad Street I first saw this truck when it was a good piece back up the road and I slowed down, not knowing which way he was coming, whether he was coming straight down the highway towards Cairo, and it looked like to me he was coming into Cairo. I just thought that. . . He was on his side of the road. I got that idea, not from anything that he did in operating his truck, only he pointed straight towards me. That was not just the instant of the collision. . . He was right at the filling station then. I had a good clear view up that highway. . . In traveling that North Broad Street I didn't ever see a stop sign there, just before North Broad Street enters the highway. In traveling that road ten years or more I have never noticed one there. There might be one there but I never noticed It. I have always slowed down there because I realized that was a dangerous intersection. . . I might have seen it [the sign], but I just never paid it no attention. It is not my custom to fail to stop when I see a stop sign, not if I see it, but I did not see that. I don't recollect that I have ever seen it. . . As I was passing the cab I was at least four feet from that truck, that far or further. It looked to me like I was at least four feet from him. That was Monday and I got out of the hospital the following Sunday. . . I do not remember Mr. Tyson coming to see me on Friday. I was conscious Friday, but that doesn't mean that I knew everything that was happening. I didn't mean that, and I don't remember Mr. Tyson coming in there, don't remember talking to him. . . If Mr. Tyson came in there and talked to me on Friday I don't know it. I said I remembered what I did, which I do, and I say if he did come in to see me on Friday I don't know it . . Mr. Frank Jones is the only one that I remember seeing in the hospital at all. I did not even know the doctor. I don't even remember seeing him. . . As to how fast I was going when I approached that intersection — I would say that I was going between 12 and 20 miles per hour. I can not tell exactly. As to whether I made an effort to stop at that intersection — yes, I slowed down and stopped. No, I did not stop. I slowed down to stop, and it looked to me like the truck was coming on me, and I got to one side and went around it. . . The reason that I was going to stop there at that intersection was because that log truck was coming in there. I could not tell whether he was going on down the highway or coming here into Cairo. As to whether I made any effort to hold out my hand to indicate whether I was going to make a left turn there — no, not that I know of, not that I remember."

Mrs. J. S. Shoemaker testified: "I am . . the wife of the plaintiff. . . As to what his condition as to knowing things was while he was in the hospital — he did not know anything much of the time. . . They kept him doped all the time. . . While Mr. Shoemaker was in the hospital I was there with him all the time. I would say that in all of the time while he was in the hospital he was not rational and not able to give a rational statement about anything."

E. Woody testified that he was a photographer and made certain photographs of the logs on the ground and some of the pictures of the truck and the logs on the ground which were put in evidence, and also some pictures of the intersection, the scene of the accident.

David Hester testified: "Two years ago, the past February, I was operating a filling station at the Triangle which faces south of the intersection. I recall an accident at the intersection in which Mr. Shoemaker was involved, and a truck load of logs was involved. After the accident Mr. Shoemaker was in his car. Howard Thrower and a negro that worked for me by the name of Williams got him out of the car after the accident and I took him to the hospital. At the time the accident happened I was standing in front of my station below the island of pumps about 40 or 50 or 60 feet of the point of the accident, and I was facing south looking directly in his car and was talking to Howard Thrower. . . I would say he was going 10 or 15 miles an hour when he approached that intersection, and when he got right at the intersection he was barely moving. . . At the time of the impact he was practically stopped. He was barely moving. . . When I first saw it [the truck] it was moving about 25 or 30 miles an hour. It was going east, coming south or going east, whichever way he wanted to turn. . . He slowed down when he was about along even with me, when he saw the car, and he was about 30 or 40 feet, I guess, from Mr. Shoemaker when he commenced slowing down. He looked like he did not know whether to continue the way he was going or turn to the right and go down towards town. He could not decide which way to go, and he finally came towards town. I think he did everything in his power to miss the car after he got in there."

Dr. A. W. Rehberg testified as to treating the plaintiff at the hospital and afterwards and his condition and further testified: "As to whether his mind was clear enough while he was in the hospital to where he could think and attend to business — anything like that, well, at times he would probably be entirely normal, but maybe ten minutes from then he would not be. As a general proposition he was not in any shape to transact business all the time he was in the hospital."

H. H. Wind testified: "I live . . practically across the street from the section of North Broad Street and State Road 38. . . At the time of the occurrence I was standing in my bathroom door looking out the door. . . I was facing Broad Street. . . All of a sudden I heard the squeaking of brakes and tires or something, and I cut my eyes right straight across the street and I saw a passenger car hitting into the intersection . . and about that time here came the truck between me and the passenger car. . . When I heard that squeaking of the brakes I would say that the truck was 50 to 60 feet from the place where I heard them together. . . I would say that the truck was going somewhere between 20 and 25 miles an hour, maybe 20. . . At the instant I first glimpsed that truck Mr. Shoemaker's car was within practically 20 feet from where it came to its complete stop. When I first saw it it had not already got into State road 38, but it did not lack but a short distance. . . At that last instant it looked like the truck was making 15 or 20 miles an hour."

Louis Merritt testified: "I was going with that load of logs to Mr. Tyson's mill and was expecting to travel right straight on down the highway and then through to the mill. I saw an automobile there coming up Broad Street near the intersection. When I first saw it it was coming towards town, going out towards Whigham. It was a pretty good distance off. I was going about 20 miles an hour at the time. That was about my speed when I came up there to the intersection. I had not slowed up any. That was about as fast as I was going, about 20 miles an hour and was about the speed I had been traveling from the time I hit the highway. I saw Mr. Shoemaker. Well, I saw him coming out the road there, and I thought he was going to stop, as I was going straight on down the highway. When I first realized he wasn't going to stop I was pretty close to him and I seen I was going to hit him in the side. I estimate that we were about 20 feet apart when I discovered he was coming right on in. When I saw that and realized it I cut my truck right short to the right so as to get over into Broad Street. I then figured on going down Broad Street. I made that maneuver or movement to keep from running in the side of him and to keep from knocking all of them logs in there on him and me both. In other words, I was trying to dodge Mr. Shoemaker's automobile so as not to run into him. As to what happened when my truck and his automobile approached near each other — when he hit it, run in between the trailer, and hit that and knocked him back and the logs fell off on him. . . I actually know that he hit the side of those logs with his automobile. . . I do not know how fast Mr. Shoemaker was going when we had this accident. I would not say. I was trying to look after myself about that time, trying to get out of the way. . . He was about 100 yards from that intersection when I saw him. . . I was about a hundred yards away looking at him, I guess. I thought we were going to reach that intersection about the same time. We got there about the same time. When I got to within about a hundred feet of that intersection he had come on up towards the intersection. He was closer to the intersection than I was when I got up to within 100 feet of it. I realized then when I was 100 feet away that if he did not stop, if he came on into the intersection, that I would meet him in that intersection, and I kept on traveling on on the idea that he would stop and let me pass. . . When I was 100 feet back up the road and realized that if Mr. Shoemaker did not stop we would both reach the intersection about the same time I could have stopped then, and if I had tried I could have slowed down my truck and stopped before I got to the intersection. The reason I did not do it was because I expected him to stop and let me pass. . . I have been driving about ten years. I know about the rules of the road as to who has the right of way at intersections. When there ain't no stop sign a fellow can go on, and the one at the stop sign — why that man has to stop. . . If two people are approaching an intersection, and there are no stop signs there, both of them are supposed to stop."

Rev. J. O. Stanaland testified: "I followed it [the truck approaching the intersection] from then on until the time of the collision. After I overtook this truck [two miles west of Cairo] and from then on until the time of the collision I was traveling at a speed somewhere between 20 and 25 miles an hour. . . According to the way I saw it he [Mr. Shoemaker] just went right on into the intersection without giving any regard to the truck whatever. The Chevrolet had not gotten to the center of the road. . . It would have blocked it [the lane of traffic the truck was on, highway No. 38] if the truck had continued on down the highway. They would have met about in the center of the road if both truck and car had continued on their course. . . I would say that during those two miles he [the truck driver] was traveling from 15 to 25 miles an hour and not to exceed 25."

Mrs. Harper Davis testified: "I was traveling in an automobile behind the log truck . . traveling at a speed of about 20 or 25 miles an hour. We followed the truck on until it had its accident. . . We trailed the truck from Roddenberry's on in, trailing behind about 35 or 40 feet."

E. L. VanLandingham testified: "I saw the Shoemaker automobile in that occurrence up there at the intersection. . . I was about 157 steps, to say correctly, from the middle of the street, out on my daughter's back yard . . and I was about half way between the two houses, and this car came up the street running mighty fast, and just as he approached the highway that runs across, why the truck came from behind the houses where I could see it . . and just as I saw the truck Mr. Shoemaker, or whoever it was in that car, give a jerk and run around ahead of the truck on the highway there, and about that time logs commenced falling off . . I would say that he [Mr. Shoemaker] was running something like 35 or 40 miles an hour. He did not slow up at all. . . I could not tell you how far back up the road the truck was at that time because the house cut off my view."

W. M. Tyson testified: He visited Mr. Shoemaker in the hospital and "he told me in the presence of one witness that he did not blame me one bit, didn't hold it against me, that he was wholly responsible for the accident. He also said that he thought my truck was standing still when he saw the truck . . and did not realize it was moving until the crash came, and when it did that he did not remember any more."

Howard Thrower testified: "I saw the wreck on or about February 3, 1947, up there at the Triangle when this accident occurred involving Mr. Shoemaker's automobile and the truck owned by Mr. Tyson. At the time I was standing in front of the Standard filling station near the gas tanks facing the car which I would say was almost east, that is, I was facing almost east and was right around the gas pumps and to a large extent my back was to the truck. When I first observed these vehicles I would think the truck and the car were 25 or 30 feet apart. The truck was going east and just an instant later he pulled to the right. That was just after I first saw it. I think he was on the right-hand side, I would not say positively, but he was on the extreme right-hand side and he made a sudden turn which threw him out, if he had kept going, right down Broad Street. At that time Mr. Shoemaker was crossing the highway, going almost north up the paved road. He might have been attempting to turn a little. I couldn't say. He was crossing the Bainbridge-Thomasville highway and was about middleways of that highway. I don't know that he had definitely made any turn to go towards Whigham, but he was still going north, cutting across that highway. When the truck pulled to the right it looked like the truck door flew open. It was open and I guess just at that instant, it looked like it flew open and then the logs in front of the truck began tumbling off on Mr. Shoemaker's car, and this was just about the instant the truck door flew open. . . I don't think the door caused the trouble. . . Mr. Shoemaker was traveling extremely slow. I don't think he was going more than 4 or 5 miles an hour. . . I would say that when I first saw the truck it was making about 15 miles an hour."

"It was agreed in open court by counsel for the defendant that First Avenue, N.E., and North Broad Street up to this particular intersection is a State Highway."

Dr. J. V. Rogers testified as to examining the plaintiff "recently" and finding certain disabilities.

J. S. Shoemaker, recalled, testified: "After hearing the statement made by Mr. Tyson as to his visit to me there in the hospital and having a conversation — I don't remember seeing Mr. Tyson at all. He could have come, but I don't remember it if he did. This accident clouded my memory or brain so that I was not clear about things, and it does until yet."

"It was admitted by counsel for the defendant in open court during the progress of the trial that there was no ordinance located authorizing the erection of a stop sign at the intersection of North Broad Street and State road No. 38."

Several photographs representing the scene of the accident and of the positions of the automobile of the plaintiff and the truck of the defendant were introduced in evidence.

The jury returned a verdict in favor of the plaintiff for $10,000 for personal damages and $1000 for damages to his automobile. The defendant filed a motion for new trial on the usual general grounds, and by amendment added several special grounds. The court overruled the motion, and the exceptions here are to that judgment and upon the bill of exceptions assigning error on the disallowance of two amendments hereinafter referred to in the opinion.

MacINTYRE, P. J. (After stating the foregoing facts.)

The collision here involved occurred on the outskirts of Cairo, Georgia. The plaintiff was proceeding in an automobile in a northerly direction on North Broad Street, approaching an intersection with highway No. 38, Bainbridge to Thomasville. The defendant's servant was driving a truck on this highway, and it was his intention, as he testified, to cross the intersection and continue eastwardly along the highway with his load of logs. It is apparently conceded by the defendant, plaintiff in error before this court, that the plaintiff Shoemaker, the driver of the automobile, had the right of way at the intersection, apart from any consideration of the stop sign which had been erected on the right hand side of North Broad Street near the intersection, but it is contended that the stop sign placed upon him the duty to come to a complete stop, and that his failure to do so and his proceeding into the intersection ahead of the truck created an emergency, that, in an effort to avoid striking the automobile, the driver of the truck, in the exercise of ordinary care, was forced to turn the truck suddenly to the right into North Broad Street, and that as a result the logs on the truck, sufficiently chained for ordinary and normal conditions, were thrown therefrom and damaged the automobile and injured the occupant. The plaintiff contends that the stop sign, not having been pleaded and proved as one legally authorized and erected, has no efficiency whatsoever in law, and that to give any recognition to it would be to nullify his right of way at the intersection. He further contends that after he had slowed down to almost a stop, and was in the exercise of his right of way, the collision occurred as the result of the truck driver's failure to yield the right of way, this negligence being the proximate cause of his damage and injury. It is apparently conceded by the defendant that at the time the driver was the employee of the defendant and was acting in the scope of his employment.

The Code, § 68-303 (g), provides: "An operator of a vehicle shall have the right of way over the operator of another vehicle who is approaching from the left in an intersecting highway, but shall give the right of way to an operator of a vehicle approaching from the right on an intersecting highway." A violation of any of the subsections of the Code, § 68-303, is negligence perse. Ivey v. Hall, 77 Ga. App. 350, 353 ( 48 S.E.2d 788), and citations. "The rule of the Code, § 68-303 (g), and like municipal ordinances, giving the right of way to automobiles approaching intersecting highways from the right, applies not only where the automobiles arrive at the intersection simultaneously or at practically the same time, but also where under all the circumstances, including the distances and speeds of the two cars, the driver of the automobile on the left should reasonably apprehend that a collision will occur unless he yields the right of way. Except in plain and clear cases, it is for the jury to determine whether such a situation existed, and whether the driver on the left violated the rule." Laseter v. Clark, 54 Ga. App. 669 (2) ( 189 S.E. 265). See also Smeltzer v. Atlanta Coach Co., 44 Ga. App. 53 (1) ( 160 S.E. 665); Essig v. Cheves, 75 Ga. App. 870 (5) ( 44 S.E.2d 712). The provisions of the Code, § 68-303 (g), apply within a municipality. Petty v. Moore, 43 Ga. App. 629 (1) ( 159 S.E. 728); Hall v. Ponder, 50 Ga. App. 627 (2) ( 179 S.E. 243). In the last cited case it was ruled: "Although by the express terms of the act [act of 1927, Ga. L. 1927, p. 226, 240, § 19; Code, § 68-312], as contained in section 19, the act shall not `be construed as changing or interfering with any regulation or ordinance which has heretofore or may hereafter be adopted by any municipality of this State, regulating the running or operation of motor-vehicles described in this act,' its provisions are applicable where they are not in conflict with any municipal regulation or ordinance. Where the municipal regulation or ordinance is not by its terms in conflict with the act, but where the regulation or ordinance can be given a construction consistent with the act and can be put into application consistently with the application of the provisions of the act, the act, notwithstanding the existence of the regulation or the ordinance, is applicable within the limits of the municipality. A provision of a municipal ordinance that a particular highway within the limits of the city is constituted a `boulevard,' and that vehicles approaching from an intersecting street in which a stop sign has been erected where the street intersects with the `boulevard' must come to a full stop before entering the `boulevard,' and there is nothing in the ordinance respecting a right of way to any of the vehicles, is not inconsistent with a provision of the State law which gives to the operator of an automobile coming from an intersecting street the right of way over the operator of an automobile from his left and approaching along the other street. The automobile required by the municipal ordinance to come to a full stop before entering the boulevard may nevertheless, in entering the boulevard, have the right of way over the vehicle approaching along the boulevard from the left." A person using the streets or highways is charged with a knowledge of the law applicable to such use. Central of Ga. Ry. Co. v. Bond, 111 Ga. 13 ( 36 S.E. 299). Custom or use will not excuse the violation of a law. 38 Am. Jur. 679, § 34; Hatcher v. Comer Company, 73 Ga. 418. Where an ordinance of a municipality is relied upon it must be pleaded and proved. Sweet v. Awtry, 70 Ga. App. 334, 346 (11) ( 28 S.E.2d, 154). The authority to regulate traffic in the City of Cairo, Georgia, and make provision for the erection of stop signs is vested in the Mayor and Councilmen of that municipality. Act of 1906 (Ga. L. 1906, p. 575, § 4).

Bearing in mind the legal principles above stated, we begin the consideration of the case by observing especially that in the absence of any stop sign the plaintiff was not required to do more than slow down at the intersection ( Petty v. Moore, 43 Ga. App. 629, 159 S.E. 728), after which he would be at liberty to exercise his right of way, subject only to the condition that he use ordinary diligence in doing so. The evidence was overwhelming that the plaintiff slowed down almost to a stop before proceeding into the intersection. According to his testimony, he was unaware of any sign, and if he had ever seen it in passing along North Broad Street on many occasions it made no lasting impression upon him, and he, after slowing down, proceeded into the intersection under the impression that the truck was coming into North Broad Street on its proper side, but that when it appeared at close range that the truck might strike him he increased his speed in second gear to about 20 miles an hour to avoid a collision, and that his car did not strike the truck. The driver testified that he saw the automobile at a distance of 300 feet away and that "When I got to within about 100 feet of that intersection he had come on up towards the intersection. He was closer to the intersection than I was when I got up to within 100 feet of it. I realized then, while I was 100 feet away, that if he did not stop, if he came on into the intersection, that I would meet him in that intersection, and I kept on traveling on the idea that he would stop and let me pass. . . When I was 100 feet back up the road and realized that if Mr. Shoemaker did not stop we would both reach the intersection about the same time I could have stopped then. The reason I did not stop was because I expected him to stop and let me pass. . . When there ain't no stop sign a fellow can go on, and the one at the stop sign, why that man has to stop." He further testified: "When I first realized he was not going to stop I was pretty close to him and I seen I was going to hit him in the side. I estimate that we were about 20 feet apart when I discovered he was coming right on in. When I saw that and realized it I cut my truck right short to the right so as to get over into Broad Street [instead of going straight ahead]. I made that maneuver or movement to keep from running in the side of him and to keep from knocking all of them logs in there on him and me both." It is obvious from his testimony that the truck driver was of the opinion that the stop sign, official or not, required the plaintiff to come to a complete stop and not merely to reduce his speed, and that there was no need, on that assumption, for him to slow down when he was 100 feet away and traveling about 20 to 25 miles an hour. Without a stop by the plaintiff, however, he realized, when 100 feet away, that the two vehicles would collide, yet he continued along the highway without slowing down until within about 20 feet of the plaintiff's car, and jammed on his brakes only when about 5 or 6 steps from the car. The contention of the plaintiff in error that the truck reached the intersection ahead of the automobile is not borne out by the record. The truck driver did not so claim. The witness Stanaland testified that the automobile would have blocked the truck if the latter had not turned into North Broad Street. The truck driver's misapprehension as to the significance of the stop sign, which must be treated here as unofficial, can not excuse his unfortunate failure to yield the right of way as required by the decisions hereinbefore cited.

Counsel for the plaintiff in error further insist that an emergency had been created by the act of the plaintiff. The jury have, however, by their verdict properly found that the plaintiff was in the exercise of ordinary care in proceeding into the intersection, after slowing down his car almost to a stop, as testified to by more than one witness, and hence any "emergency" that was created was necessarily caused by the failure of the truck driver to yield the right of way. In these circumstances he could not avail himself of an emergency created by himself and contend that he could not have avoided the collision because of an emergency. No citation of authority need be given for this well-established legal principle.

But counsel also contend that the stop sign, even if unofficial, was sufficient to bring into operation the rules of the common law and require that the plaintiff, in the exercise of ordinary care, should heed the sign and come to a complete stop. We can not subscribe to this view. To uphold it would be to set at naught the power as to traffic control and regulation in the City of Cairo which was exclusively vested in its Mayor and Councilmen by the act of 1906, supra. That official body might determine that a stop sign should not, in the interest of traffic efficiency, be erected and maintained at a given point, and yet its judgment and wishes be completely emasculated by anyone, with or without an intelligent knowledge of traffic requirements, who might choose, even capriciously, to erect a stop sign at such point. Such an anomaly would strike at the very heart of the statutory right of the plaintiff here to exercise a right of way at an intersection, after reducing his speed in approaching, and without coming to a complete stop unless so required to do by a valid municipal ordinance. A stop sign which requires one to stop an intersection within a city ought to mean, and we hold it does mean, one which has been erected in pursuance of a valid municipal ordinance. Since the legislature has conferred a priority upon the driver on the right at an intersection, the burden is, and ought to be, upon one who contests the exercise of his right of way to show that it has been postponed by a municipal ordinance requiring that he first come to a complete stop, and not merely reduce his speed in approaching an intersection. If it be said that this requires the driver on the left to know en route whether or not a stop sign be official, the answer is that he had best forbear a challenge of the other's progress and bide his time if he does not know.

It was set up in the answer of the defendant that the State Department of Public Safety, in conjunction with the State Highway Department, had designated State Highway No. 38 as a through highway, and that pursuant thereto the State highway maintenance department had erected the stop sign in question, but, although these allegations were never stricken, the defendant apparently abandoned such contentions at the trial, and unsuccessfully sought to show that that the sign had been erected under directions of the Chairman of the Street Committee of the City Council.

In the present case there was no showing that the stop sign was official or that the plaintiff knew of its existence. He testified that he did not know it was there, and that if he had ever seen it, no lasting impression of it was made on his mind, and he contends that in fact he did all that he was required under the law to do, namely, to reduce his speed in approaching the intersection, and that thereafter in due diligence he exercised his right of way. The jury was authorized to find that the failure of the truck driver to yield the right of way under the circumstances shown was the proximate cause of the plaintiff's injury and damage. Such failure constituted negligence per se under the law, and no jury question is presented as to whether or not under the rules of the common law the stop sign, even if unofficial, required the plaintiff to stop at the intersection.

Cases from other jurisdictions are cited by counsel for the plaintiff in error in support of their contentions, but do not require any ruling contrary to that here made. We do, however, refer to two Georgia cases relied upon as to the significance of a stop sign. In Sweet v. Awtry, 70 Ga. App. 334 (supra), the plaintiff relied upon an ordinance of the City of Atlanta requiring the erection of stop signs on Butler Street at Cain Street, declaring it to be unlawful for the operator of any vehicle or any pedestrian to disobey the instructions of any official sign or signal placed in accordance with the provisions of the city ordinance unless otherwise directed by a police officer. This court held that the ordinance was not subject to the objection that it was too indefinite to be capable of enforcement and attempted to delegate legislative, executive and judicial power to the city policemen in violation of certain specified provisions of the Constitution of the State of Georgia. Then followed a quotation from Meadows v. Lewis, 235 App. Div. 243 ( 257 N. Y. S. 137), as follows: "By common usage, term `stop-sign' has acquired meaning of legally erected and maintained traffic signal." This court was dealing with an official sign and passing upon the objection stated, and the quotation was unnecessary and obiter, but in any event it can not be said that this court held, or intimated, that the presence of any sign would cast upon the person disobeying it the burden of showing that it was not official. We are cited by counsel to the New York case, from which the quotation was taken, as authority for their contention that any stop sign on a highway or street raises the presumption that it is official, but that case is not authority for such a ruling. There a collision occurred at a State highway intersection. The opinion referred to the highway law of the State, capable of judicial recognition, providing that the superintendent of public works might, in his discretion, erect and maintain certain described stop signs, and there was a statute making it unlawful to display any official sign purporting to be official or attempting to regulate traffic. It was held that certain testimony constituted a sufficient prima facie showing of the validity and authority of stop signs and was an adequate basis for presuming that the sign in question was not illegally constructed and maintained. It was not even intimated that a stop sign for which no provision had been made by the proper authority would raise a presumption of validity as counsel for the plaintiff in error urges upon us.

In Richardson v. Coker, 78 Ga. App. 209 ( 50 S.E.2d 781), the plaintiff was driving on Barnett Street, in a southerly direction, in Atlanta, Georgia. This street had been designated a traffic boulevard, and on St. Charles Avenue, which ran east and west and crossed this boulevard, a stop sign had been erected. The driver of the automobile on St. Charles Avenue failed to stop. It was not contended that the sign was unofficial, and the decision is not authority for any ruling that where there is a stop sign it is presumed to have been erected under legal authority.

There was evidence as to whether or not the load of logs was equipped with sufficient chains about the logs. This question, however, is of no consequence, because even if chains adequate under normal conditions were used, the sudden turning of the truck to the right conceivably brought about the dislocation and falling off of the logs, as counsel for the plaintiff in error urge, and if, as we hold, this result was brought about by the driver's negligence in failing to yield the right of way, as the jury was authorized to find, such negligence could be said to have been the proximate cause of the plaintiff's injury and damage.

The defendant testified that the plaintiff admitted to him in the hospital after the collision that he was entirely to blame for the collision, but the jury was authorized to find from other evidence that he was incapable of making rational statements at the time, and the plaintiff testified that he did not remember making such statements or any visit by the defendant.

The defendant in error filed in this court a motion accompanied by a certified copy of an order of court disallowing two amendments of the defendant and reciting that the defendant admitted in open court that there was no official regulation or ordinance authorizing the stop sign here involved. It is contended that these recitals should prevail over those in the bill of exceptions and exceptions pendente lite that the defendant admitted in open court that no ordinance had been "located" authorizing the erection of the sign, and it is prayed that the certified copy of the order be made a part of the record. The plaintiff in error asks that the motion be denied, insisting that the other records should prevail. The certified copy of the order can not be accepted by this court as all records from the trial court must be transmitted directly by the clerk of that court. The motion is denied, but it may be added that the alleged inconsistency is of no importance, since it does not appear from the record that only ordinance was pleaded and proved.

2. The first special ground of the motion for new trial complains because the court refused to admit in evidence the testimony of J. E. King, as follows: "That about the year 1934 as street superintendent, acting on orders of J. F. Montgomery, Chairman of the Street Committee of Council, I placed and installed a stop sign on the east edge of North Broad Street a few feet south of the intersection of this street with State Road No. 38; that this sign was a metal sign approximately two feet square, having thereon in bold letters the words "Through Street — Stop;' that to my knowledge this sign was maintained at said location continuously from the time it was placed there up to and including February 3, 1947; and that there was a like sign on the other side of State Road No. 38, near the intersection of State Road No. 38 and the Pelham Highway, which was placed there at the same time and was maintained continuously up to and including February 3, 1947; that a certain metal sign having thereon the words `Through Street — Stop' as exhibited to me here on the witness stand is the exact metal sign located on the south side of State Road No. 38 as described by me above or is another sign of exactly the same appearance and description which has been taken down at some other location. That the small post near the telephone pole in photograph identified as defendant's Exhibit No. 1 is the post on which the said `Through Street — Stop' sign I have identified was placed and was being maintained on February 3, 1947." It was contended that this testimony was material as putting in evidence a physical fact or condition, and on the question of the exercise of ordinary care by the plaintiff and avoidance of the collision; the proximate cause of his injury and damage; whether the negligence, if any, of the truck driver was the proximate cause of the plaintiff's injury and damage; whether he was in the exercise of ordinary care; whether the plaintiff was in the exercise of ordinary care and could have avoided the consequences of any negligence of the truck driver; contributory negligence and comparative negligence.

The second special ground of the motion for new trial complains because the court refused to admit in evidence the following testimony of J. B. VanLandingham: "As Chief of Police of the City of Cairo I became familiar with the fact that for a number of years up to and including February 3, 1947, a metal sign, having thereon the words `Through Street — Stop' had been maintained on the east edge of North Broad Street a few feet south of the intersection of that street with State Road No. 38. The sign, as exhibited to me here on the witness stand is the exact metal sign located on the south side of State Road No. 38 as described by me above or is another sign of exactly the same appearance and description. That the small post near the telephone pole on photograph identified as defendant's Exhibit No. 1 is the post on which the said `Though Street — Stop' sign I have identified was placed and was being maintained on February 3, 1947." The same reasons as those given in the 1st special ground as to materiality were stated in this ground.

The third special ground of the motion complains because the court refused to admit in evidence the following testimony of C. H. Strickland: "There was a stop sign at this intersection on the day of the accident, February 3, 1947, and it had been maintained at this intersection for a number of years to my knowledge. That the small post near the telephone pole in photograph identified as defendant's Exhibit No. 1 is the post on which the said `Through Street — Stop' sign I have identified was placed and was being maintained on February 3, 1947." The same reasons as those given in the 1st special ground as to materiality were stated in this ground.

The fourth special ground complains because the court refused to admit in evidence a "metal sign" as being the exact sign or facsimile of the sign which on February 3, 1947, stood on the east edge of North Broad Street, the same reasons urged as to materiality in the 1st special ground being given in this ground.

Special ground 5 complains because the court refused to permit the truck driver to testify as follows: "The reason I expected Mr. Shoemaker to stop before entering this intersection was because of the stop sign there at that intersection; that I thought I was on a through street. I knew those stop signs were there at that intersection." The same reasons urged in the 1st special ground as to materiality were stated in this ground.

Special ground 4 is without merit and can not be considered because it merely shows that the defendant offered in evidence a "metal sign" without it being shown what words were inscribed thereon, thus enabling this court to know its relevancy, if any. It is set forth that it was the exact sign or facsimile of the sign which on February 3, 1947, stood on the east side of North Broad Street, a few feet south of the intersection, and it is pointed out that the inscription may be determined by reference to special grounds 1 and 2 of the motion. It is well settled, however, that every ground of a motion for new trial must be complete within itself and other grounds will not be looked to in order to complete it. Trammell v. Shirley, 38 Ga. App. 710, 715 ( 145 S.E. 486); Sloan v. Glaze, 72 Ga. App. 415, 418 ( 33 S.E.2d 846); Cram v. Daniel, 79 Ga. App. 647, 651 ( 54 S.E.2d 487). Special grounds 1, 2, 3 and 5 are without merit under the ruling we have made in division 1 of this opinion that the stop sign in question, not having been shown to have been erected and maintained in pursuance of any municipal ordinance, would not require the plaintiff to obey it, and the truck driver on the left would rely at his peril upon it being official. The custom and usage of travelers to obey the sign over a number of years would not relieve the truck driver from yielding the right of way, especially when it was not shown that the plaintiff had, within the knowledge of the truck driver, been in the habit of stopping in obedience to the sign, the plaintiff having reduced his speed according to some witnesses and having entered the intersection in advance of the truck driver. 38 Am. Jur. 679, § 34; Hatcher v. Comer, 73 Ga. 418; Miller v. Moore, 83 Ga. 684, 685 ( 10 S.E. 360, 6 L.R.A. 374, 20 Am. St. R. 329); Happ Brothers Co. v. Hunter Manufacturing c. Co., 145 Ga. 836 (5) ( 90 S.E. 61). The proposed testimony of J. E. King that as street superintendent of the City of Cairo he installed in 1934 a described sign, acting on orders of the Chairman of the Street Committee of Council would not show a valid and official act of the Mayor and Councilmen authorizing the erection of a stop sign.

Special ground 6 complains that the court erred in charging the jury as follows: "The plaintiff in this case does not claim any special damages. He sues for general damages, which the jury must determine for themselves after considering all of the facts and circumstances of the case. [a] General damages for injury to his person and [b] damages for pain and suffering, which he said resulted from his injury which he claims to have sustained. It is impossible to produce evidence to the jury as to the amount of money that would be necessary to compensate a man for pain and suffering which he has sustained, whether in mind or body. The law, therefore, says that the amount that the plaintiff would be entitled to recover must be left to the enlightened conscience of an impartial jury, such an amount as would, under the circumstances of the case, be, in the mind and conscience of an enlightened, intelligent and impartial jury, a sum which the plaintiff should recover as compensation and which would be properly chargeable to the defendant." It is contended in substance that this charge was confusing and misleading to the jury and caused them to believe that they could determine by their enlightened consciences, not only what amount should be awarded the plaintiff for pain and suffering, but also for other elements of damages, such as diminished earning capacity, loss of time, physicians' bills and hospital expense, the court failing to give the jury elsewhere in his charge any guide for estimating such other elements of damages. While the plaintiff sought damages for diminished earning capacity, he did not seek damages for loss of earnings. In the latter case it would be necessary to introduce proof as to the earnings before and after the injury, but loss or impairment of earning capacity is an element of pain and suffering. See West v. Moore, 44 Ga. App. 214 (2) ( 160 S.E. 811). No proof was submitted on special damages, and the jury could not reasonably be said to have gained the impression that they could have awarded any damages for such. The court specifically told the jury that the plaintiff did not claim special damages. That left, as clearly shown by the charge, only [a] general damages for injury to his person [b] damages for pain and suffering. The court had already instructed the jury that general damages "are such that the law presumes to flow from any wrongful act, which the law denominates a tort, and may be recovered without proof of any amount." See Byfield v. Candler, 33 Ga. App. 275 (6) ( 125 S.E. 905); Central Georgia Power Co. v. Fincher, 141 Ga. 191 ( 80 S.E. 645). In the excerpt complained of the court told the jury that they must determine for themselves the general damages after considering all the facts and circumstances, but it was not in connection with, but was apart from, the later reference to pain and suffering, the amount of damages for which must be left to the enlightened consciences of an impartial jury. It is clear that the court did not confuse and mislead the jury as the plaintiff in error contends.

Special ground 7 has been expressly abandoned.

Special ground 8 complains that the court erred in charging the jury as follows: "The defendant files an answer in response to the petition in which generally the allegations of the plaintiff are denied. The defendant claims and contends that the plaintiff was injured and his automobile damaged through negligence of the plaintiff himself, that is, that the plaintiff failed to exercise ordinary care at the time and under the circumstances, and that his negligence was the proximate cause of his injury, and therefore the defendant is not liable to the plaintiff for the damages. It is further alleged in the answer that the plaintiff entered the highway without having given the sign or signal required by the law when one is to stop or to make a turn into the highway. Those in substance are the contentions of the defendant." It is asserted that this charge failed to present the defense that the truck driver was in the exercise of ordinary care and operating the truck at about 15 miles an hour when, without notice or warning as the truck approached within a few feet of the place where North Broad Street intersects highway No. 38, the plaintiff, in substance, created an emergency which required the truck driver to turn sharply and radically to the right, and he would have cleared the automobile and avoided any injury and damage to any person or thing but for the stress and strain brought about by such sudden turn, causing the breaking or snapping of a chain holding the logs firmly in place on the truck, whereupon the logs were dumped by centrifugal force upon and against the plaintiff's automobile with resulting damage to the automobile and injury to the plaintiff. There was no evidence of any emergency created by the plaintiff in the manner in which, as the plaintiff in error contends, he entered the intersection, since, in the absence of an official stop sign, and after slowing down as the statute requires, he had the right of way and was exercising it, as the jury was authorized to find, in due care. The court did not err in failing to charge as to an emergency, and the other portions of the charge, together with the statement to the jury that they would have the pleadings out with them for reference, were sufficient in the absence of a special request for any specific instruction. Mosteller v. Mashburn, 64 Ga. App. 92 (2) ( 12 S.E.2d 142); Thomson v. Avery, 67 Ga. App. 671, 676 (4) ( 21 S.E.2d 331); United Motor Freight Terminals v. Driver, 75 Ga. App. 571, 574 (6) ( 44 S.E.2d 156).

3. By exceptions pendente lite error is assigned on the disallowance of two amendments. The first of these alleged the existence of the stop sign which the rejected evidence heretofore referred to sought to establish, its presence since 1934, the custom of operators of vehicular traffic, including the plaintiff, to recognize the sign and give preference to vehicular traffic on highway No. 38 before entering the intersection, that the plaintiff had used the same route on many occasions, was acquainted with and duly observed the sign, but that on the occasion of the collision his negligence in disregarding it was the proximate cause of his injuries and damage. The second amendment described the sign in more detail, alleging its existence since 1934 and its erection by the street superintendent of the City of Cairo on orders from the Chairman of the Street Committee of the Mayor and Council, knowledge thereof by the plaintiff and that the public generally, including the truck driver, would rely upon him giving observance and due regard to the sign, and that his failure so to do on the occasion of the collision was the proximate cause of his injuries and damage. These objections are without merit and are controlled adversely to the plaintiff in error by the rulings hereinbefore made.

Judgment affirmed. Gardner and Townsend, JJ., concur.