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Action for damages; from Sumter Superior Court-- Judge Rees. May 16, 1952.
1. The portion of the charge complained of, with regard to the care required of a person threatened with imminent danger or in an emergency, was not unsound as an abstract principle of law.
2. The jury was authorized to find that the plaintiff's employee entered an intersection without stopping at a stop sign and while looking away from the defendant's automobile, which he had observed to be approaching the intersection, and in so doing negligently created a danger of collision with the defendant's automobile, which was the proximate cause of the damage sustained by the defendant in the resulting collision. The trial judge properly refused to grant a new trial.
A. D. Gatewood Jr. and A. D. Gatewood III, doing business as Premier Dry Cleaners, brought an action for damages to their truck against Julia Irene Vaughn, and she filed an answer and cross-action for damages to her automobile and for personal injuries arising out of the same collision. It was admitted in the pleadings that O. A. Adams, an employee of the plaintiffs, acting within the scope of his employment, was driving the plaintiffs' truck west on Lamar Street in the City of Americus on April 12, 1951. According to the allegations of the petition, which were denied by the defendant, Adams brought the truck to a full stop at the point where Lamar Street runs into Forsyth Street; and, observing no vehicles on Forsyth Street, he proceeded onto that street. As he reached the north side of Forsyth Street and was proceeding west, he saw Mrs. Vaughn approaching in her car on Forsyth Street, traveling east at a speed of 45 miles per hour. As she came into the intersection, her car crossed the center line of Forsyth Street to the north side thereof and collided with the plaintiffs' truck, thereby damaging it. It was further alleged that the defendant was negligent in driving at an excessive rate of speed in violation of the laws of the city of Americus, in driving across the center line and on the wrong side of the street, and in failing to keep a lookout for other vehicles upon the highways of the city.
The defendant alleged in her cross-action that there was a stop sign on Lamar Street at its intersection with Forsyth Street, placed there by the State Highway Department; that the defendant was driving at 15 miles per hour on her right side of Forsyth Street as she approached its intersection with Lamar Street, when Adams, driving the plaintiffs' truck, ran by the stop sign on Lamar Street without stopping, and into Forsyth Street; that, when the defendant saw that the truck was going to run into her car, she blew her horn, applied brakes and turned to the left to try to keep the plaintiffs' truck from running into her car, but that the right front of the plaintiffs' truck hit the right front of her car, knocking it to the left side of Forsyth Street. The plaintiffs' employee, Adams, was alleged to have been negligent in driving at an excessive speed in violation of the laws of the City of Americus; in failing to stop at a stop sign in violation of Code 68-315; in failing to keep a lookout for other vehicles upon the highways of the city, and in driving without looking where he was going.
On the trial of the case, the jury found in favor of the defendant for the damage to her automobile, and the evidence tending to support their verdict brought out the following facts: Forsyth Street, as one proceeds on it from the west into Americus, crosses an overpass and then curves to the left and north as State Highway 49; Lamar Street branches off to the right at this point and curves to the south as State Highway 280. The intersection appears as a fork in the road to drivers approaching from the west. Both streets are 40 feet wide. There was no stop sign for traffic moving into the intersection on Forsyth Street from the west, but there was a stop sign, erected by the State Highway Department, on Lamar Street, to stop vehicles approaching the intersection from the east on Lamar Street, as was the plaintiffs' truck at the time in question. The evidence of the plaintiffs' witnesses was to the effect that Adams stopped before reaching the sign, saw the defendant's car approaching on the overpass from the west on Forsyth Street, and then moved out into Forsyth Street so that he could look for cars approaching the intersection from the east on Forsyth Street, his view in that direction, to his right rear, being obscured by cars parked between Lamar and Forsyth Streets. The defendant's evidence was to the effect that Adams slowed down but did not come to a complete stop before entering the intersection. The defendant saw the plaintiffs' truck as she crossed the overpass; she slowed her car to 18 or 20 miles per hour, and, believing that Adams was going to stop, she continued on the right side of Forsyth Street. When she saw that Adams was looking back to his right rear and was coming into the intersection at 20 or 25 miles per hour, she blew her horn, and, just as he looked around, the truck which Adams was driving struck the defendant's right front fender and wheel, deflecting the defendant's car to the north side of Forsyth Street. The truck stopped on the center line of Forsyth Street. After the collision, Adams said that he had expected that the defendant would turn into Lamar Street from Forsyth Street, so as to pass beside the plaintiffs' truck instead of in front of it. Ordinances of the City of Americus were introduced, to the effect that vehicles shall keep to the right; that vehicles moving in opposite directions shall pass to the right; that the speed limit for motor vehicles was 15 miles per hour within the fire limits and 20 miles per hour outside the fire limits, and half the legal speed in crossing heavy traffic streets or upon approaching the intersection of any street.
The plaintiffs moved for a new trial, and they excepted to the denial of their motion.
1. The only special ground of the motion for a new trial which is now insisted upon complains that the following excerpt from the charge of the court to the jury was "erroneous and not sound as an abstract principle of law: 'I charge you that a person threatened with an imminent danger is not held to the same circumspection of conduct that he would be held to if he were acting without the compulsion of emergency. A person has the right to choose even a dangerous course if that course seems the safest under the circumstances.
The assignment of error in this ground of the motion raises only the question of whether the excerpt from the charge was erroneous, in that it was not sound as an abstract principle of law. The first paragraph of the excerpt was stated by Judge Powell in the opinion in the case of Pacetti v. Central of Georgia Ry. Co., 6 Ga. App. 97, 102 (64 S. E. 302), and it was quoted by this court in the opinion in Morrow v. Southeastern Stages, 68 Ga. App. 142, 148 (22 S. E. 2d, 336). The further propositions stated in the charge are substantially in the language of the opinion in the Morrow case, supra, where the authorities for those propositions are cited. It is contended by the plaintiffs in error in their brief in this court, but not in their amended motion for a new trial, that the principles given in the charge complained of are correct because they fail to state explicitly that the danger must not have arisen from any fault of the person whose diligence or negligence in the emergency is under consideration. But such person's fault or lack of it is the subject matter of these propositions, and they are all to the effect that the actions of such a person are to be considered by the jury in view of the emergency existing, that is, in view of the unforeseen combination of circumstances requiring immediate action to avert injury to life, limb or property. It was the contention of the defendant that the driver of the plaintiffs' truck failed to heed a stop sign and entered the intersection of Lamar and Forsyth Streets without looking where he was driving and thereby created an emergency which caused the defendant to turn her car to the left in trying to avoid being hit by the plaintiffs' truck. She thought he would observe the stop sign and stop his truck before entering the intersection, but he failed to do so and drove the truck into the intersection and against the defendant's car, as contended by the defendant. Under such circumstances, it was a question for the jury to determine whether the defendant exercised the proper degree of care, that is, such care as an ordinarily prudent person would exercise under the same or similar circumstances. The portion of the charge complained of was not unsound as an abstract principle of law, and this special ground of the motion shows no error.
2. The plaintiffs argue, on the general grounds of their motion for a new trial, that the collision would not have occurred if the defendant had continued on the right side of the road, and that, as the defendant was not justified in turning to the left, because any sudden peril or imminent danger of collision then arising was created by her own negligence in exceeding the speed limit, failing to keep a lookout for other vehicles, and not reducing her speed at an intersection, her action in turning to the left was therefore the proximate cause of the collision and damage.
However, the jury was authorized to find that the plaintiffs' driver failed to stop at the stop sign on Lamar Street, moved onto Forsyth Street while looking to his right rear and away from the defendant's approaching car, and was then directly in the path of the defendant's automobile, so as to create a danger of collision. Whether this constituted an emergency as to the defendant, and whether her conduct in such circumstances was negligent, were questions for the jury ( Doyle v. Dyer, 77 Ga. App. 266, 48 S. E. 2d, 488), which were resolved in favor of the defendant. Such questions of negligence and proximate cause are for the jury, ordinarily, and their verdict must stand where, as here, it is supported by some of the evidence. The trial judge properly refused to grant a new trial.
Judgment affirmed. Worrill, J., concurs. Felton, J., concurs specially.
Charles Burgamy, Fort & Fort, contra.
Smith & Undercofler, for plaintiffs in error.
Saturday May 23 04:44 EDT

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