Davies v. West Lumber Co.

Jenkins, P. J. It is contended by the plaintiff that the verdict for the defendant was unauthorized and contrary to law. The petition charged, as acts of negligence by the defendant, (1) the driving of the automobile truck at a reckless and unlawful speed of “approximately 30 miles per hour when crossing the sidewalk at one of the main thoroughfares of the city of Atlanta;” (3) “driving said truck” across such thoroughfare “without sounding [463] some warning of its approach;” and (3) “driving to the right of an automobile which he was following when crossing said sidewalk, whereas he should have driven to the left of said automobile in compliance with the rules of traffic of the city of Atlanta.” As to the first charge of negligence the evidence was clearly in conflict, authorizing the verdict for the defendant, the defendant’s witnesses testifying to a lawful and reasonable speed. As to the second, there was likewise a jury question whether the injury resulted from the failure to sound a warning, from some other cause, or from the lack of ordinary care by the plaintiff, even if the ■ jury, in passing upon these questions, could properly have considered such failure to sound a warning, in view of the testimony of the plaintiff himself that he saw the automobile truck approaching even before he left the sidewalk to cross the street, near the center of which he was struck. The sounding of a signal of approach, under such circumstances, could hardly have added to the knowledge of the defendant. As to the act of the defendant in passing to the right, instead of to the left, of an automobile preceding the defendant’s truck and moving in the same direction, it appears from the plaintiff’s evidence that, after he stepped from the sidewalk of the street intersecting that along which the defendant’s truck and the car preceding it were approaching, he succeeded in passing the front car, when he was struck by the truck, which had passed the front car to the right. It is contended that, under the rule stated in O’Dowd v. Newnham, 13 Ga. App. 220 (7), since, as in that case, “the automobile in question was suddenly turned from the course it was taking, whereby it collided with a pedestrian to whom no signal or warning was given,” and since, as the plaintiff contends, it appears “from undisputed evidence that the pedestrian was exercising due care,” this was sufficient to “exclude all idea of contributory negligence” on the part of the plaintiff. The ruling in that case, however, was not, as the plaintiff here contends, that the proof demanded a verdict for the plaintiff, but merely that it was “sufficient to authorize the jury to find that the negligence of the driver was the proximate cause of the injury;” and it was there further held that “it is for the jury to determine, from the evidence, in any case of a collision between an automobile and a pedestrian, whether it was the duty of the driver to have stopped the auto [464] mobile, whbfher lie endeavored to do so, and whether the failure to stop in the particular case was due to negligence.” In the instant case there is no charge of negligence either in failing to have the car “under immediate control” in approaching a “person walking in the roadway,” or in not '“passing to the left side of the . . vehicle overtaken,” in conformity with the provisions of the motor-vehicle act, but the allegation is merely that, in passing the vehicle in front, the defendant’s driver “should have driven to the left of said automobile in compliance with the rules of traffic of the Cüy of Atlanta,.” (Italics ours.) No municipal ordinance was introduced, and this court is not empowered to take judicial cognizance of such an ordinance. Moreover, emergencies may arise when the failure to observe such a rule by the person driving to the wrong side might not amount to a failure to exercise ordinary care. See Athens Ry. &c. Co. v. McKinney, 16 Ga. App. 741, 744 (supra); Pacetti v. Cen. Ry. Co., 6 Ga. App. 97 (2), 98 (64 S. E. 302). As has been repeatedly held, questions of negligence, including contributory negligence, as well as the question as to what constituted the proximate cause of an injury, are all such questions as lie peculiarly within the province of the jury. In the instant case it appears, according to the evidence for the defendant, that the sudden stopping of the other car in front without warning required the defendant’:-’ driver to turn his car to the right in order to avoid a collision. On these questions as to the negligence of the defendant, the proximate cause of the injury, and the exercise of ordinary care by the plaintiff to avoid injury, while there was strong evidence which might have authorized a verdict for the plaintiff, such a verdict was not demanded. Judgment affirmed. Stephens and Bell, JJ., concur.