O'Dowd v. Newnham

Bussell, J.

(After stating the foregoing facts.)

Since we are convinced, after a painstaking investigation of the ■record, considered in the light of decisions of courts of last resort in many of our sister States, that the verdict was supported by the evidence and that there was no material error in any of the instructions of the court to which exception is taken, nor in the refusal of the court to give the instructions which were requested, we might dispose of the case by a simple affirmance of the judgment refusing a new trial. However, the points insisted upon by learned counsel for the plaintiff in error are so ingeniously and earnestly urged that they deserve more than a passing notice. Furthermore, the largely increasing use of automobiles, and the fact that the relative duties of automobilists and pedestrians, under a state of facts similar to those here presented, has not been the subject of direct adjudication in this State, makes imperative, even more than ordinarily, the duty imposed upon us by law of deciding each question involved in the case before us. Civil Code, § 6197.

1. We may start with the proposition which is elementary, and which has been recognized in all the rulings upon the use of automobiles, that a pedestrian and the user of an automobile have equal rights upon public highways, and that each is to use the highways bearing in mind the right of the other and in such a manner as not to injure the other. This court has already held (Lewis v. Amorous, 3 Ga. App. 50, 59 S. E. 338) that automobiles are not inherently dangerous instrumentalities, but that the danger arises from the negligent or improper use of the machine. There may have been a time when, because of the novelty of the vehicle, as well as its inherent force and power, there was question as to whether the use of automobiles should be permitted upon the public highways. However, ever since the ruling of the Supreme Court of Indiana, in Indiana Springs Company v. Brown, 165 Ind. 465 (1 L. R. A. (N. S.) 238), wherein it was held that “the law does not denounce the use of motors as such on the public ways,” and that the uses to which a highway may be subjected must keep abreast with the progress of the times, the right of automobiles to use public highways has been accorded (but not the right of way), upon the authority of Chief Justice Cooley’s dictum in Macomber v. Nichols, 34 Mich. 217 (a traction-engine ease), that “a highway established for the general benefit of passage and traffic must admit of new methods of use whenever it is found that the general benefit requires them.” It is uniformly held that the automobile, when properly handled, has the right to use the public highways. But as the law recognizes the duty of every user of the highway to avoid injury to every other person entitled to its use, the law does not lose sight of the fact that “diligence” (such diligence as must be used to prevent injury to another) is a variable term, defining a duty whose measure is largely dependent upon the circumstances in each particular ease where the existence of this quality is the subject of inquiry. It is not to be forgotten that in order to fulfil the duty of even ordinary diligence, the danger attending the use of a particular instrumentality may impose a greater degree of care than would be necessary in the use of an instrumentality which, no matter how it may be used, is not capable of inflicting so serious an injury. To use the illustration employed by one of the courts in this connection: “One who walks along a crowded thoroughfare with a sharp scythe in his hands must use greater care in handling this instrument than would be required of him if he held an umbrella or small cane.” Weil v. Kreutzer, 134 Ky. 563 (121 S. W. 471, 24 L. R. A. (N. S.) 557).

2. One of the duties incumbent upon one who operates an automobile (and this is a duty incumbent upon the driver of any vehicle) is that of anticipating the presence upon the highway of other persons having rights to be there equal with his own; and if, by failure to discharge this duty, the right of another is disregarded and injury results, the owner of the automobile is liable for any consequent damage. The driver of an automobile is bound to exercise reasonable care in anticipating the presence of pedestrians upon the streets of a city, or upon rural highways, as well as to exercise reasonable care to the end that he does not injure them after he is aware of their presence. The application of this principle is qualified by the rule to which we have just referred in the first division of this opinion. The pedestrian, like the driver of an automobile, in the exercise of ordinary care for his own safety and for the safety of others, is required to anticipate the presence of persons and vehicles upon the highway; but it can not be said that the duty which is upon the pedestrian is as urgent as that devolving upon the driver of an automobile; for the foot-passenger’s action or inaction in the premises is far less important to the other users of the highway. The impact of the body of a pedestrian, absorbed in his own meditations, upon a passer-by, might be measurably uncomfortable, but it would seldom be hazardous to either life or limb, whereas the impact of an automobile in motion while the driver is asleep might cause as certain death as if the injured person had been wilfully pursued and wantonly crushed. The pedestrian and the automobile have equal rights upon the highway, but their capacity for inflicting injury is vastly disproportioned. It follows also from this that the driver of an automobile can not be said to be using the highway within his rights, or to be in the exercise of due care, if he takes advantage of .the force, weight, and power of his machine as a means of compelling pedestrians to yield to his machine superior rights upon the public highway designed for the use of all members of the public upon equal terms.

' Instances are almost a matter of daily occurrence where apparently the drivers of automobiles operate their machines as if they have been granted a right of way over the public highways and as if it is nothing more than the duty of the pedestrian to yield precedence to the automobile, and to stop and wait until the automobile has passed before attempting to proceed in crossing a street or otherwise using the highway. If there is anything in the argument of priority, man was created before the automobile, and, to paraphrase a quotation from Holy Writ, man was not created for the automobile, but the automobile was created for man. Generally the natural instinct of self-preservation will inspire in the pedestrian a due degree of caution for his own safety, when he is aware of the approach of an automobile; and this the law will require him to exercise. Sometimes the circumstances surrounding the approach of one of these vehicles of ponderous proportions inspires a terror which paralyzes the power of locomotion on the part of the traveler on foot, especially if he be a child of tender years. In such a ease the dangerous character of the instrumentality which the driver of an automobile is operating forbids the assertion that he has exercised even ordinary diligence, unless he has used every possible means to avoid injury to the pedestrian. On account of the ease with which injury can result from the slightest negligence or inattention in the operation of his machine, ordinary diligence requires that the driver of an automobile be constantly on the lookout, and that he have his machine in such condition as that it shall be under his perfect control. -The pedestrian also is required to be on the lookout, but he has the right to assume that the drivers of all automobiles are on the lookout for him too; and if he is properly upon the public highway, which he is entitled to use equally with them, he has the right to assume that they are both willing and able to regard his rights. While, therefore, the law requires that a pedestrian and the driver of an automobile shall each anticipate the presence of the other upon the public highways, and that neither shall do any act likely to jeopardize the safety of the other, still, on account of the great disparity in their respective capacities to inflict injury, the exercise of ordinary diligence on the part of the pedestrian to look out for automobiles does not necessarily require as continuous caution as is. requisite to enable an automobilist to fulfil the definition of “ordinary diligence,” as applied to one having in his charge a dangerous and death-dealing instrumentality. “The degree of care one must use always bears a direct ratio to the degree of injury which would probably be caused by negligence.” Weil v. Kreutzer, supra. For this reason the courts have uniformly held that one who is operating an automobile upon the streets of a city must keep a constant lookout in anticipation of pedestrians, but that a pedestrian is not bound to be continually looking and listening to ascertain if auto-cars are approaching, under penalty that if he fails to do this and is injured, it must be presumed from this fact alone that he was negligent. Weil v. Kreutzer, supra; Thies v. Thomas, 77 N. Y. Supp. 276; Bradley v. Jaeckel, 119 N. Y. Supp. 1071; Gregory v. Slaughter, 124 Ky. 345 (99 S. W. 247, 124 Am. St. R. 402); Irwin v. Judge, 81 Conn. 492 (71 Atl. 572); Towle v. Morse, 103 Me. 250 (68 Atl. 1044); Simeone v. Lindsay (Del.), 65 Atl. 778; Hannigan v. Wright, 5 Pennew. (Del.), 63 Atl. 236; McFern v. Gardner, 121 Mo. App. 1, 19; Hennesey v. Taylor, 189 Mass. 583 (76 N. E. 224, 3 L. R. A. (N. S.) 345); Tiffany v. Drummond, 168 Fed. 47; 14 Am. Dig., Decennial Edition, 1787 et seq.; Huddy on Automobiles, §§ 47, 95, et seq.; Babbitt on Motor Vehicles, §§ 244, 268, et seq.

3. The degree of diligence which must be exercised in a particular exigency is such as is necessary to prevent injuring others; and, in considering whether the operator of an automobile exercised due diligence, or, by failure to exercise due'diligence, is guilty of negligence, the character of the instrumentality which he operates, and the danger attached to its operation if it be improperly used, as well as the character of the highway being traversed, and the probability of inflicting injury if all needed care is not used in the operation of the machine, are all to be taken into account. While the driver of'an automobile is-required to anticipate the presence of pedestrians 'at all times upon all public highways, still, if in traversing a straight stretch of road or street he saw no one in sight, he would not be expected to exercise the same degree of caution (though his lookout should be none the less vigilant) as would be necessary were he passing along a thoroughfare thronged with vehicles and pedestrians, or about to pass a much-used street crossing. As stated above, to comply with Ms duty of exercising ordinary care, taking into consideration the surroundings and circumstanees, the operator of an automobile should use every precaution necessary to prevent injury. He should never lose sight of the danger to which a pedestrian may be exposed by the operation of his automobile, or the injury which may be inflicted by failure on his part to operate it without due regard for the safety of others. It can well be said, that, as related to the use of an automobile, it is negligence ever to forget the dangerous quality of the machine, or to disregard it and employ the machine as a means of abusing the rights of others. An automobilist should, ever bear in mind the ordinances and public laws regulating the operation of such machines and designed for the protection of the public.

4. It is strenuously urged by learned counsel for the plaintiff in error that the trial judge erred in his charge by practically limiting the defense to a consideration of whether the plaintiff’s husband was negligent in failing to exercise due care to avoid the injury, and in excluding from the jury’s consideration O’Dowd’s defense that Newnham’s negligence concurred in bringing about the danger from which the injury resulted. We do not assent to the statement that the trial judge excluded the defense of contributory negligence. As appears from the record, the judge more than once submitted 'to the jury the question whether negligence on the part of Newnham contributed to the injury, and instructed them, in effect, that if they found that his death was caused by negligence of the driver of the automobile, but that he also was guilty of negligence, any damages they might find should be diminished in proportion to the degree of negligence attributable to Newnham. This, under the facts of the case, was all that the judge was required to charge. It is true that the law recognizes two kinds of contributory negligence; that is, the law recognizes that contributory negligence may be due either to acts of commission or to acts of omission. In other words, the lack of diligence may consist in doing the wrong thing at the time and place in question, or it may consist in doing nothing when something should have been done. As stated by counsel for the plaintiff in error, a plaintiff may be negligent when he does some act which concurs with the defendant’s act in bringing about the danger from which the injury results, or the negligence may consist in failing to use care to avoid the consequences of a danger after the defendant’s act has made that danger operative, and the plaintiff sees and knows the danger, or, in the exercise of ordinary-care, should have seen and known it. We fully concur in the distinction or difference pointed out by counsel. But counsel admits that if it is manifest from the circumstances that the plaintiff (or injured party, if another person is entitled to recover for the injury) was free from fault in bringing about the injury, a failure of the court to instruct the jury with reference to such concurring negligence on the part of the injured party as would defeat recovery, would be harmless error; and, in our view of the evidence, the undisputed testimony in this case required a finding that no negligence whatever could be attributed to the plaintiff’s husband. We do not hold in any case that contributory negligence, not amounting to such a lack of diligence 'as that the plaintiff by’ the exercise of ordinary care could have wholly avoided the injury, will entirely defeat a right to recovery on the part of a plaintiff who may himself have been guilty of negligence which concurred in causing the injury. TJnder our code, if the injury was primarily due to the negligence of the defendant, the right of the plaintiff is not defeated, even though but for the concurring negligence of the plaintiff the injury might not have resulted; but the plaintiff’s recovery should be diminished in proportion to the- degree in which his negligence contributed to the injury.

It may be conceded that the case might be different if O’Dowd and Newnham had both been pedestrians, or if both had been operating automobiles. In such a ease the consideration as to whether each of them exercised diligence, or whether one of them was negligent, or whether both were negligent, would have been governed by the same principles. But considering the facts of the present record in the light of the principles to which we have heretofore referred, there can be no question that Newnham was not negligent, and the jury were authorized to say that the driver of O’Dowd’s automobile was negligent. This took away from O’Dowd the possibility of defending upon the first kind of contributory negligence, and submitted to the jury only the issue as to whether O’Dowd’s ear was operated in such a manner as that the fatality which overtook Newnham could be properly adjudged to have been an unavoidable accident. Newnham was a pedestrian; he had a perfect right to cross the street at right angles, or diagonally. It is true that he was running to catch a street-ear, but a pedestrian has as much right to run upon the public street as to walk, provided that in running he uses due care for the safety of others. He was required also to use ordinary care for his own safety, but there is no evidence that his safety was endangered by any other vehicle of any description while running to catch the street-car. It must be presumed that he saw O’Dowd’s automobile, because there was no obstruction to prevent his seeing it. If he saw it, he had the right to assume that the driver of the automobile, in the exercise of due caution and keeping a lookout, saw him; and he had the right to assume, since he saw the. automobile traveling upon the north driveway, that it would not be suddenly turned before reaching the crossing, so as to cut off his progress or so as to come into collision with him. There is no theory that can be drawn from the evidence under which negligence can be attributed to Newnham, unless we concede that the rights of an automobilist upon public highways are superior to those of pedestrians, and that, on account of the greater weight and power of the automobile, the automobilist can force a pedestrian, whom he sees lawfully using the streets, to turn from his course and stop, or flee, at his (the automobilist’s) pleasure. The judge would not have erred if, under the facts of this case, he had wholly omitted any reference to contributory negligence. Generally, where these defenses are relied upon, and always where there is evidence in support of both defenses, a trial judge should give the jury proper instructions both as to contributory negligence and the duty of the plaintiff (or the party alleged to have been injured) to use ordinary care to avoid injury; because the terms "contributory negligence” and "the failure to use ordinary care to avoid injury” are not synonymous. •But proof that a party used ordinary care to avoid injury, or that the party inflicting the injury was guilty of such gross negligence as that the injury to the other party could not have been prevented by the exercise of ordinary care, may entirely negative the existence of 'contributory negligence.

5. A pedestrian who, in using a public highway, is in the exercise of due care for his own protection and for the safety of others can not, as a matter of law, be held to be guilty of contributory negligence merely because he does not run to escape injury by an automobile. ' Automobiles have no monopoly of the public highways, nor any priority of right in their use, and “the operation of an automobile upon the crowded streets of a city necessitates exceeding carefulness on the part of the driver.” Thoughtless inattention on his part is the essence of negligence. Lampe v. Jacobson, 46 Wash. 536 (90 Pac. 654); Towle v. Morse, supra.

6. We are strongly of the opinion that contributory negligence, being an affirmative defense, must be specially pleaded (5 Enc. Pl. & Pr. 10, and see Savannah Electric Co. v. Lackens, 12 Ga. App. 770-71, 79 S. E. 56); but even if not, still unless the evidence affirmatively establishes that the negligence of the injured party contributed to the injury, the defense of contributory negligence can not be employed to defeat the action.

7. Since the driver of an automobile is bound to use a degree of reasonable care proportioned to the danger of the instrumentality which he operates, and is bound, when traversing a much-frequented street, to anticipate the presence on the street of other persons having an equal right with himself to be there, proof that the automobile in question was suddenly turned from the course it was taking, whereby it collided with the pedestrian, to whom no signal of warning was given by the driver of the automobile, it appearing, from undisputed evidence, that the pedestrian exercised due care, was sufficient to authorize the jury to find that the negligence of the driver was the proximate cause of the injury, and to so exclude all idea of contributory negligence as to render instructions upon this subject unnecessary. See Arsenau v. Sweet, 106 Minn. 257 (119 N. W. 46), and cases cited supra.

8. The operation of an automobile, at a rate of speed in excess of that prescribed by a valid municipal ordinance is negligence per se. The driver must so operate his automobile as to have its speed at all times under his control; and whenever it is necessary, for the preservation of either person or property, that the automobile should be brought to a stop, the exercise of reasonable care requires that the vehicle be stopped instantly. 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 automobile, whether or not he endeavored to do so, and whether the failure to stop^ in the particular case was due to negligence.

9. The judge refused to charge that “there is no 'law requiring the operator of an automobile, while properly using the streets, to sound a gong, blow a horn, or give other warning to pedestrians of its approach.” Whether the use of a gong, a horn, or other warning to pedestrians is necessary in the exercise of due diligence by the driver of an automobile, and whether the failure of the driver to give these or other cautionary signals is negligence, are both jury questions, dependent for their solution upon the peculiar facts of the particular case; and for this reason the judge did not err in refusing to charge the jury as above stated. To have given the charge requested would have trenched upon the prerogative of the jury in determining what would constitute negligence or diligence in the case..

10. Exception is taken to the refusal of the trial judge to give the following instruction: "If Mr. Newnham and Mr. Mulherin were equally in the wrong) plaintiff can not recover, and your verdict must be for the defendant.” Refusal to give a requested instruction is not error, unless the charge requested is in itself correct and perfect (Macon, D. & S. R. Co. v. Joyner, 129 Ga. 683, 59 S. E. 902); and although a request to charge may contain a correct abstract principle of law, it is properly refused where it may be misleading or confusing when applied to the facts of a particular case. However, so far as it was pertinent, this request to charge was covered in the general instructions of the court to the jury, and inasmuch as the instructions given were correct, the complaint that some other appropriate principle of law was not given in immediate connection therewith, is not ground for a new trial. Central Ry. Co. v. Grady, 113 Ga. 1046 (39 S. E. 441), and citations.

11. Even if the right of one who is injured by another, to whom he does not occupy any contractual relation, to recover damages for the injury, can be defeated by proof that the negligence of the injured party was equal to that of the tort-feasor, instead of merely being diminished in proportion to the negligence of the injured party, still the charge of the court upon this subject affords the defendant no cause for complaint. The court charged the jury: "If you believe that Mr. Mulherin [the driver of the defendant’s automobile] was negligent to some extent, and you also believe that Mr. Newnham was negligent to an equal or to a greater extent, the plaintiff can not recover in this case, and your verdict shall be for the defendant.” In view of this instruction, failure of the court to charge that if the deceased and the defendant’s driver were equally negligent, the plaintiff could not recover is not cause for a new trial, especially as no appropriate request to charge on the subject of equality of negligence was presented.'

12. The evidence authorized the verdict, and there was no error in refusing a new trial. Judgment affirmed. -