Opinion
40590.
DECIDED JUNE 19, 1964. REHEARING DENIED JULY 3. 1964.
Action for damages. Fulton Superior Court. Before Judge Moore.
Gambrell, Harlan, Russell, Moye Richardson, E. Smythe Gambrell, Edward W. Killorin, Sidney F. Wheeler, for plaintiff in error.
Edenfield, Heyman Sizemore, Robert G. Young, Hurt, Hill Sosebee, Robert L. Todd, Kenyon, Kenyon Gunter, A. Richard Kenyon, contra.
1. Farkas v. Kaufman, 108 Ga. App. 659 ( 134 S.E.2d 488) is explained and distinguished.
2. Where a widow jointly sues two defendants for the wrongful death of her husband, alleging that the driver of the ambulance in which the husband was a passenger, was negligent in failing to yield the right of way in the fact of a stop signal at an intersection and alleging that the driver of an automobile that collided with the ambulance at the intersection, was negligent in failing to yield the right of way to an ambulance sounding its siren and displaying a flashing red light, the petition sets out a cause of action against the defendants.
The question as to which defendant had the right of way is merely a matter of defense which the jury might consider as a factor in determining the separate or concurrent negligence of each defendant.
The driver of an automobile having the right of way is not freed by that fact from the duty to exercise ordinary care, but under proper circumstances may be found by the jury to be guilty of negligence in failing to exercise ordinary care in the utilization of his right of way.
DECIDED JUNE 19, 1964 — REHEARING DENIED JULY 3. 1964.
Mrs. Olin Smith sued James Alfred Lusk and J. Austin Dillon Company for damages for the wrongful death of her husband. Defendant Lusk filed a general demurrer, which was overruled by the court below. He excepts to the judgment overruling his demurrer, and the only issue to be decided is whether the petition states a cause of action against Lusk.
The allegation of the petition are substantially as follows:
On April 30, 1962, Mrs. Smith's husband, who was suffering from a heart condition, was being transported from home to a hospital by an ambulance of J. Austin Dillon Company, which had been employed to carry the husband to the hospital for emergency treatment. The ambulance, operated by an agent of J. Austin Dillon Company, was traveling west on Auburn Avenue at a speed of more than 60 miles per hour, approaching the intersection of Piedmont Avenue and Auburn Avenue in the downtown business section of Atlanta, Georgia, where traffic was heavy. At the same time Lusk was approaching the intersection driving his automobile north on Piedmont Avenue. The visibility from vehicles traveling north on Piedmont Avenue and from vehicles traveling west on Auburn Avenue was limited by a building in the southeast corner of the intersection. The ambulance was sounding its siren, "which emitted a piercing and highly audible sound of warning which the defendant Lusk heard," and was "displaying a revolving red light on the roof of said vehicle where the same was plainly visible to other vehicles in the vicinity." An electric traffic control signal was indicating a red light for traffic on Auburn Avenue to stop. The red light and other conditions at the intersection notwithstanding, the ambulance driver failed to stop at the intersection, but only slowed to a speed of 50 miles per hour as he entered the intersection. The sound of the siren, the display of the warning light, and the limited visibility at the intersection notwithstanding, defendant Lusk failed to stop or otherwise yield the way to the ambulance, and the two vehicles collided. In the collision the petitioner's husband received injuries "proximately and solely caused by the joint and concurring negligence of the defendant, J. Austin Dillon Company, and the defendant, James Alfred Lusk," and these injuries resulted in the husband's immediate death.
The petition charges J. Austin Dillon Company with various specific acts of negligence, all relating to excessive speed, failure to reduce speed, failing to stop in response to the traffic control signal and failure to yield the right of way. Two of the specific acts of negligence against J. Austin Dillon Company are "failing to stop before entering said intersection in response to the traffic control device located at the same," alleged as a violation of Code Ann. § 68-1613 and as a violation of § 30.95 of the Code of the City of Atlanta of 1953, negligence per se in each instance. Two others are "failing to yield the right of way to the vehicle being driven by the defendant, James Alfred Lusk, which had entered the intersection from a different street," alleged as a violation of Code Ann. § 68-1650 (a) and as a violation of § 30.47 (a) of the Code of the City of Atlanta of 1953, negligence per se in each instance.
The petition alleges that James Alfred Lusk was negligent as follows:
"(1) In failing to yield the right of way to an ambulance which was approaching with its siren plainly audible and a revolving red light upon the same plainly visible.
"(2) In failing to yield the right of way to a vehicle which appeared to be on an emergency mission and was not observing the usual speed and caution of a motor vehicle upon the streets of the city.
"(3) In failing to stop his vehicle and bring the same close to the curb of the street when the ambulance approached with a clearly audible siren and a clearly visible revolving red light upon the same."
The plaintiff in error relies heavily upon the case of Farkas v. Kaufman, 108 Ga. App. 659 ( 134 S.E.2d 488), contending in effect that Farkas is authority for the proposition that a petition alleging that two joint tortfeasors each failed to yield the right of way to the other's vehicle is in the alternative and thus is subject to general demurrer, since the petition, being construed against the pleader, is subject to the inference that each of the defendants had the right of way and thus neither would be negligent in proceeding into the intersection. That contention, however, does not represent the holding in Farkas. Although the court there did construe the petition as pleading that each of the two defendants had the right of way, the demurrer was sustained because the host driver Kaufman was absolved from the charge of gross negligence by that construction which gave the host driver the right of way when coupled with other deficiencies in the pleadings which were peculiar to that case. Farkas does not hold, and could not hold, that one who has the right of way cannot be guilty of gross or ordinary negligence in proceeding through an intersection, as precedents preclude that holding.
Assuming arguendo that the petition shows that defendant Lusk had the statutory right of way this does not necessarily mean that he was not negligent in failing to yield the right of way to the ambulance, for the driver of an automobile having the right of way at an intersection is not freed from all duty to exercise ordinary care. Laseter v. Clark, 54 Ga. App. 669 ( 189 S.E. 265).
"The common-law duty to exercise due care in the operation of motor vehicles rests on the driver irrespective of statute . . . and statutory rules of the road are regarded as cumulative and do not abrogate such duty. [ Williams v. Grier, 196 Ga. 327 ( 26 S.E.2d 698)]. Statutory rules of the road set a minimum rather than a maximum standard of care, and a motorist may not assume that because rules laid down by statute accord him certain rights and preferences he may avail himself thereof regardless of the rights and safety of others. The issue of liability turns on the use of reasonable care under existing conditions rather than on compliance with governmental regulations. . ." 60 CJS 648, Motor Vehicles, § 268.
A driver having the right of way at an intersection has the right to assume that drivers of cars approaching on the cross street will yield the right of way. "It has been held that it is not even material in certain cases that one having the right of way failed to keep a lookout ahead. . . Whether or not this is true depends upon whether or not one, by exercising ordinary care to look where he is going, should have seen that the active negligence of another was such that unless he did something to avoid it a collision would occur. One who is not himself negligent has a right to assume that others like himself will obey the rules of the road until such time as it becomes apparent to him as a person in the exercise of due care that this is not true, but at that time a duty arises on his part to exercise ordinary care to avoid the negligence of that other." Buice v. Atlanta Transit System, 105 Ga. App. 795, 797 ( 125 S.E.2d 795). "His right of way and right to assume the absence of negligence by others do not entitle him to drive blindly or recklessly across an intersection, especially one which might be termed a `blind intersection,' without regard to the conditions and consequences. It is his own duty to exercise ordinary care in being alert to observe vehicles approaching the crossing, and to exercise care in the control, speed, and movements of his car to avoid a collision, after he sees, or by ordinary diligence could have seen, that one is threatened or imminent." Eddleman v. Askew, 50 Ga. App. 540 (3) ( 179 S.E. 247). Powers v. Pate, 107 Ga. App. 25, 28 ( 129 S.E.2d 193). "What he cannot do is to test a known and obvious peril, and after it is or should be clearly apprehended that a collision is threatened or imminent, he cannot blindly and recklessly proceed without regard to conditions and consequences. . ." Central Container Corp. v. Westbrook, 105 Ga. App. 855, 862 ( 126 S.E.2d 264).
Lusk is charged, not merely with failing to yield the statutory right of way, which arguendo it is assumed that he had, but with failing to yield the right of way under conditions and circumstances which the jury may find to be a "known and obvious peril." There is no inconsistency between the charges of negligence against J. Austin Dillon Company and the charges of negligence against Lusk. The question as to which defendant had the right of way is merely a matter of defense which might be considered by the jury as an element in determining the separate or concurrent negligence of each.
The petition alleges negligence against Lusk sufficiently to state a cause of action against him, and whether he was negligent in failing to yield the right of way under the conditions alleged is a question for the jury.
Judgment affirmed. Jordan and Eberhardt, JJ., concur.