While the sudden swerving of an automobile from the right side to the left side of a highway by the driver thereof, when confronted by an emergency which seems to require this course to avoid a collision is not negligence, the question of whether or not there is such an emergency as seems to require this course is generally one of fact.
DECIDED JUNE 1, 1948. C. M. Dyer, hereinafter referred to as the plaintiff brought suit in the Civil Court of Fulton County against the plaintiff in error, J. M. Doyle, hereinafter referred to as the defendant, alleging substantially that on November 1, 1947, the plaintiff *Page 267 was the owner of a 1947 model Buick automobile which was being driven by his sister, Mrs. Sally Hall, in a westerly direction on the Bankhead Highway at the reasonable and safe speed of 25 miles an hour following an automobile being driven by the defendant in the same direction; that upon reaching a point approximately 2 miles west of the Chattahoochee River, the defendant, for some reason unknown to the plaintiff, skidded onto the left-hand side of the highway and collided with a third automobile being driven in the opposite direction from that which the defendant and the plaintiff were going; that the third automobile upon colliding with the car of the defendant, swerved into the plaintiff's car and damaged it in certain specific ways so as to impair its market value to the extent of the sum of $500; that the damage done to the plaintiff's car was the proximate result of the negligence of the defendant as follows: "(a) The fact that the defendant had driven his automobile across the center line onto the left-hand side of the road in the direction in which he was driving; (b) the failure of the defendant to keep his car under control; and (c) the defendant's failure to keep a proper lookout in order to avoid contact with the automobile heretofore referred to, the driver of which is to your petitioner unknown."
The defendant by answer admitted the ownership of the plaintiff's automobile; that it was being driven by his sister on the highway, in the direction and at the place alleged in the petition, behind the car which he was driving; and that the plaintiff's car was struck by the car driven by the third person. All other allegations of the petition are denied. Construing the evidence in its most favorable light to uphold the judgment of the trial judge trying the case without the intervention of a jury, he was authorized to find facts substantially as follows: that the plaintiff's car was being driven at the place on the highway and at the speed alleged in the petition; that the defendant was driving approximately 25 feet in front of Mrs. Hall, sister of the plaintiff and at about the same speed; that she had followed the defendant for some distance and noticed that he was weaving his car from one side of the road to the other; that a truck was being operated in the same direction about 25 feet in front of the car being driven by the defendant; that at the point of collision the *Page 268 truck suddenly stopped in front of the defendant who in turn put on his brakes and swerved across the center line of the highway onto the left-hand side thereof; that a Ford automobile running approximately at the same speed, was approaching from the opposite direction meeting the defendant on that side of the highway which was the right-hand side of the highway for the Ford and the left-hand side of the highway for the defendant; that the defendant speeded up his car in an effort to go entirely across the highway and to the left-hand side thereof; that the approaching Ford collided with the right-hand side of the defendant's automobile; that this collision caused the driver of the Ford to lose control of it and it in turn collided with the car of the plaintiff damaging it in such way as to impair its market value in the sum of $500.
The trial judge entered a judgment for the plaintiff in the sum of $500. The defendant filed a motion for a new trial on the general grounds only, which was overruled and this judgment is assigned as error. Counsel for the defendant in his brief contends, first, that Mrs. Hall by driving within 25 feet of the defendant after she had observed his car weaving from one side of the road to the other was lacking in the exercise of ordinary care and by the exercise thereof could have avoided the consequences of the defendant's negligence, and therefore the plaintiff is not entitled to recover, and second, that the defendant's negligence, if any, was not the proximate cause of the collision, but that it was caused by the truck in front of the defendant stopping suddenly and thus creating an emergency. There is evidence that a truck entered the highway in front of the truck that was being operated in front of the defendant and in the same direction which caused this truck to stop suddenly, but it is contended that the defendant swerved to his left to avoid a collision with the truck that had stopped directly in front of him and that this is the proximate cause of the collision between the Ford automobile and the plaintiff's car.
1. Addressing ourselves to the first contention of counsel for the defendant to the effect that the driver of the plaintiff's car *Page 269 failed to exercise ordinary care so as to avoid the negligence of the defendant, it has been held many times that questions as to diligence and negligence, including contributory negligence and what negligence constitutes the proximate cause of the injury complained of, are questions peculiarly for the jury. SeeSouthern Railway Co. v. Slaton, 41 Ga. App. 760 (3) (154 S.E. 718); Larkin v. Andrews, 27 Ga. App. 685 (109 S.E. 518);Columbus R. Co. v. Moore, 29 Ga. App. 79 (113 S.E. 820);Rome Ry. Light Co. v. King, 30 Ga. App. 231 (2) (117 S.E. 464).
Accordingly it was for the trial court, sitting without the intervention of a jury, to determine whether or not the conduct of the driver of the plaintiff's car amounted to the lack of the exercise of such ordinary care as to bar his recovery. The judge resolved that question against the defendant and since the evidence supports his finding the same will not be disturbed by this court. See many cases cited in Code (Ann.), § 70-202, catch-words "Any evidence."
2. Counsel for the plaintiff contends that the defendant by driving across the center line of said highway onto the left-hand side thereof, is in violation of Code § 68-303c, which provides that "An operator meeting another vehicle coming from the opposite direction on the same highway shall turn to the right of the center of the highway, so as to pass without interference," and is therefore guilty of negligence per se and that this constitutes the proximate cause of the damage to the plaintiff's car. In Morrow v. Southeastern Stages, 68 Ga. App. 142, 148 (22 S.E.2d 336), the following is held: "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 the emergency. A person has a right to choose even a dangerous course, if that course seems the safest one under the circumstances. Pacetti v. Central of Ga. Ry. Co., 6 Ga. App. 97,102 (64 S.E. 302)." Also on the same page the following is held: "In case of emergency a swerving of a traveler to the wrong side of the road is not negligence. A driver is justified in turning to the left side of the road in order to avoid a collision. So, in any action for injury sustained when two automobiles collided in the highway, plaintiff, turning to the left, while acting as a reasonable man upon the honest belief that he *Page 270 would thereby avoid a collision with the defendant, was absolved from obeying the law of the road and turning to the right."
However, the Morrow case, supra, was before this court on the question of whether or not the trial court erred in charging the foregoing quoted principle of law and the holding in theMorrow case is to the effect that whether or not such an emergency justified the defendant in the violation of the rule of the road by driving to the left of the center thereof is one of fact.
The petition also charges the defendant with negligence in not keeping his car under control, and in not keeping a proper look-out, etc.
Under the evidence in the instant case these were questions of fact. See Southern Ry. v. Slaton, supra, and cases cited. The trial court resolved these questions against the defendant and his finding will not be disturbed by this court.
The judgment of the trial court overruling the motion for a new trial is without error.
Judgment affirmed. MacIntyre, P. J., and Gardner, J.,concur.