Russell v. Corley

91 S.E.2d 24, 212 Ga. 121, 1956 Ga. LEXIS 271

• Court: Supreme Court of Georgia
• Decided: January 9, 1956
• Docket: 19091
• Status: Published

Opinions

Candler, Justice.

By his mother as next friend, Marvin Edward Corley, a three and one-half year old child, sued H. Forrest Russell, Jr., for damages. His' petition alleges that the defendant negligently injured him with an automobile while he was crossing a street in the city of Albany. The evidence shows that the plaintiff was struck and injured by the defendant’s automobile on North Madison Street at 6:15 p. m. on January 5, 1954, and at a point on that street other than at a marked crosswalk or an unmarked crosswalk at an intersection. During the trial and over the plaintiff’s objection, the court permitted the defendant to place in evidence article 4, section 59 of the Traffic Code of the City of Albany, which reads as follows: “Every pedestrian crossing a roadway at any point, other than within a marked crosswalk, or within an unmarked crosswalk at an intersection, shall yield the right of way to all vehicles upon the roadway.” During his charge, the judge instructed the jury as follows: “One who is himself rightfully using the highway or street has a right to the use thereof, which is superior to that of one who is violating traffic regulations, and, in the absence of knowledge, he is not required to anticipate that some other user will unexpectedly violate the law or rule of the road and create a situation of danger.” The case resulted in a verdict for the defendant. The plaintiff moved for a new trial on the usual general grounds, and in two of his special grounds complained of the admission of section 59 of Albany’s Traffic Code and the above-quoted portion of the court’s charge. His amended motion was denied, and he sued out a writ of error to the Court of Appeals. That court reversed the trial judge, holding that the ordinance should not have been allowed in evidence, and that the charge relating to it was erroneous since the ordinance was improperly admitted in evidence over the plaintiff’s objection. Its rulings were based on the proposition that “the child was an infant of tender years, incapable of either violating the ordinance or exercising ordinary care for his own safety.” Corley v. Russell, 92 Ga. App. 417, 427 (88 S. E. 2d 470). To review these rulings we granted the writ of certiorari. Held:

Argued October 10, 1955 Decided January 9, 1956. Burt & Burt, W. H. Burt, for plaintiff in error. P. Walter Jones, H. G. Bawls, contra.

1. While we, of course, agree that a person three and one-half shears old is not accountable for any act he commits, nevertheless a child of that age is a pedestrian who can violate, but with immunity, an ordinance which requires one when crossing a street, except at designated places, to yield the right of way to all vehicles on the street. In this case it was both relevant and material for the defendant to show that the plaintiff, though a child of tender years, was violating this traffic ordinance at the time he was injured. The evidence shows without dispute that the plaintiff was injured at a point on a street in the City of Albany where all pedestrians are required to yield the right of way to vehicles. While the plaintiff, because of his tender age, was not chargeable with any degree of negligence for his act in violating the ordinance, nevertheless the defendant was entitled to show that the plaintiff was in fact violating the ordinance when his injury was sustained. The defendant on his trial was entitled to any protection from liability which the ordinance afforded him, though no negligence for a violation of it can be imputed to the plaintiff. Because the plaintiff, due to his age, was not expected to exercise ordinary care to prevent an injury to himself, and was not chargeable with negligence for the commission of an act which would otherwise be a negligent one, did not preclude the defendant from bringing forward any competent evidence showing or tending to show that he was at the time of the accident operating his automobile in a lawful manner and that the plaintiff, though a child, was at the same time violating a city traffic ordinance which prohibited him from crossing a street at a designated point. The purpose of the ordinance would be subverted if the regulations prescribed by it should be subjected to exceptions based on judgment of the individual user of the street, and this consideration would be conspicuously applicable in the case of a user whose capability of exercising judgment and caution was affected by immaturity. While the capacity of youth is to be accorded due consideration in matters concerning negligent conduct and criminal responsibility, it is not at all unreasonable or unjust, but imperatively necessary, to hold that an ordinance fixing reasonable rules and regulations for the use of city streets is applicable to all pedestrians, as otherwise motorists would always travel the streets at their peril. Over the objection made thereto, it seems very clear to us that the trial judge properly admitted the ordinance in evidence when it was offered by the defendant; it was, in our opinion, both relevant and material to the issue which the jury was to determine.

2. Since the trial judge properly admitted the ordinance in evidence, there is clearly no merit in the plaintiff’s contention that the charge respecting it was erroneous. /

3. The application for the writ of certiorari in this case was not improvidcntly granted. Hence, the motion here made to dismiss the writ is denied.

Judgment reversed.

All the Justices concur, except Wyatt, P. J., and Mobley, J., who• dissent.