Ferguson v. Gurley

*579On Motion for Rehearing.

On motion for rehearing movant contends that the evidence shows that his wife was driving the station wagon on her own side of the road at a lawful speed, and was not shown to have been guilty of any acts of negligence which contributed to or constituted a part of the proximate cause.

From its very nature, negligence may consist in the doing of something which should not have been done. Negligence may also consist in leaving undone that which ought to have been done. It may, therefore, be a fault of omission as well as a fault of commission.

The plaintiff testified, without objection, as follows: “At the time we passed Mr. Moody’s house there was a long rounding curve to the left, and this ’60' Chevrolet was coming around on our side of the road, he was on the left when I saw him, and at that time I asked Mrs. Ferguson to get out of the road, he was going to hit us, and he continued on and sideswiped the ’59 Chevrolet in front of us and came on about 200 or 250 feet and hit us, which I would say was on the left front headlight. When I yelled at Mrs. Ferguson and asked her to get out of the way, my words were, 'Sue, you are going to have to get out of the road, that fellow is going to hit us.’ She didn’t get out of the road till the last minute, she finally turned the wheel at the last second. She did not get out of the road. What happened, the 1960 Chevrolet hit us on our left front headlight . . .”

The plaintiff’s wife, who was not a party to this action, testified as follows: “I was riding with Mrs. Ferguson, and in the car also were my husband, Mrs. Jewell Lester and Mr. Ralph Meeks. I was sitting on the right-hand side of the car. I know where Mr. J. A. Moody’s house is, about eight miles this side of Dallas. As we got in front of Mr. Moody’s house my husband said, 'Sue, you are going to have to get off the road, or that car will hit us.’ When he said that, I looked up and saw the car coming that he was referring to, a Chevrolet convertible. When I looked up and saw it I would say it was between seven and eight hundred feet away, on the wrong side of the road. After my husband told Mrs. Ferguson to get off the road she didn’t get off the road; she didn’t notice his statement or say *580anything to him. The Bailey automobile sideswiped the ear that was in front of us which I later learned was the Radcliff car. It was a little over 200' feet in front of us. After the Bailey car sideswiped the other car he came on toward us. After he was almost on us I think Mrs. Ferguson finally turned to the right and got off the highway a little but she did not get out of the way; there was a collision.”

A State Highway Patrolman, who investigated the accident, testified: “The collision between the Bailey car and the Rad-cliff car [the 1959 Chevrolet automobile] happened five feet three inches north of the center line, on Radcliff’s side of the road. The paved portion of the road there is twenty feet, so each lane is ten feet, so the accident between the Bailey car and the Radcliff car occurred in about the center of the north lane, Rad-cliff’s lane, and 219 feet from that point to where the Ferguson car and the Bailey car collision occurred, that is further east, so the Bailey car at its rate of speed was traveling the distance from the Radcliff car to the point of collision while the Ferguson car was approaching its point of collision, so that the Ferguson car was further back of the Radcliff car than the 219 feet by whatever amount the ratio of the two speeds would be.”. He further testified that the shoulder of the road at this location was “a good 8 feet wide.”

Under these facts and circumstances, we are of the opinion that it was for the jury to determine whether the defendant’s wife failed to exercise ordinary care to avoid the consequences of Bailey’s negligence, and whether her negligence concurred with Bailey’s negligence as a proximate cause of the plaintiff’s injuries. Code § 105-603. Anderson v. Williams, 95 Ga. App. 684, supra. See Western &c. R. Co. v. Ferguson, 113 Ga. 708 (39 SE 306, 54 LRA 802); Southland Butane Gas Co. v. Blackwell, 211 Ga. 665 (88 SE2d 6); Willis v. Jones, 89 Ga. App. 824 (81 SE2d 517).

We adhere to our original opinion.