Southland Butane Gas Co. v. Blackwell

88 S.E.2d 6, 211 Ga. 665, 1955 Ga. LEXIS 423

• Court: Supreme Court of Georgia
• Decided: May 10, 1955
• Docket: 18864
• Status: Published

Opinions

Hawkins, Justice.

(After stating the foregoing facts.) It is elementary that the father cannot recover in this case unless the deceased son could have recovered had he been only injured and lived. Berry v. Northeastern Railroad, 72 Ga. 137.

At common law, if the injury to or death of a person resulted from any negligence attributable to him, regardless of the degree, there could be no recovery, and no apportionment of damages. Macon & Western R. Co. v. Johnson, 38 Ga. 409, 432; Central R. & Bkg. Co. v. Dixon, 42 Ga. 327, 330; Hines v. Evitt, 25 Ga. (4) (103 S. E. 865). This common-law rule was changed in this State by Code §§ 94-703 and 105-603, which are as follows: "No person shall recover damages from a railroad company for injury to himself or his property, where the same is done by his consent or is caused by his own negligence. If the complainant and the agents of the company are both at fault, the former may recover, but the damages shall be diminished by the jury in proportion to the amount of fault attributable to him.” Code § 94-703. "If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover. In other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained." Code § 105-603. Under these sections of the Code it is clear that there can be no recovery of damages where the injured party has failed to use ordinary care to prevent an injury to himself, unless the injury be wilfully and wantonly inflicted upon him. Thus, one is bound at all times to exercise ordinary care for his own safety, even before the negligence of another is or should be apparent, and this duty should not be confused with that other duty imposed by law upon all persons to avoid the negligence of another where the negligence of such other is existing, and is either apparent, or the circumstances are such that an ordinarily prudent person would have reason to apprehend its existence.

The rule is so well established in this State that the acts or conduct of one voluntarily drunk will be measured by the same rules as those applying to a sober person, that citation of the numerous decisions to that effect by both this court and by the Court of Appeals is deemed unnecessary. For a list of some of them see Rollestone v. Cassirer & Co., 3 Ga. App. 161, 175 (59 S. E. 442). In Southwestern Railroad v. Hankerson, 61 Ga. 114, it is said: “If one voluntarily becomes drunk, and consequently falls down, or lies down, in a state of insensibility on a railroad track, so that he is injured by a passing train, he cannot recover for injuries so received, even though there may have been contributory negligence on the part of employees of the road.” Paraphrasing the ruling there made, if one voluntarily becomes drunk, and consequently falls down, or lies down, in a state of insensibility on a public highway, so that he is injured by a passing motor vehicle, he cannot recover for injuries so received, even though there may have been contributory negligence on the part of the operator of the motor vehicle. In City of Columbus v. Griggs, 113 Ga. 597 (1) (38 S. E. 953, 84 Am. St. R. 257), it is said: “One who knowingly and voluntarily takes a risk of physical injury the danger of which is so obvious that the act of taking such risk, in and of itself, amounts to a failure to exercise ordinary care and diligence for his own safety, can not hold another liable for damages resulting from a hurt thus occasioned, although the same may be in part attributable to the latter’s negligence.” As held in Berry v. Northeastern Railroad, 72 Ga. 137, supra, if the plaintiff’s son, by the use of ordinary care, could have avoided the consequences to himself, even when caused by the defendant’s negligence, he would not have been entitled to recover. Here, as in that case, the deceased voluntarily got drunk, and while in that condition placed himself in a state of- peril, and, as there held, such conduct on the part of the deceased “evinced a total want of that care which a man of common sense would take of himself, and is nothing short of gross negligence.” In Beasley v. Elder, 88 Ga. App. 419 (76 S. E. 2d 849), the Court of Appeals quoted and followed the ruling in Southern Railway Co. v. Hogan, 131 Ga. 157 (62 S. E. 64), that “One who knowingly and voluntarily takes a risk of injury to his person and property, the danger of which is so obvious that the act of taking such risk, in and of itself, amounts to a failure to exercise ordinary care and diligence for his own safety and that of his property, can not hold another liable for damages from injuries thus occasioned.” For some of the numerous cases holding to the same effect sec Briscoe v. Southern Railway Co., 103 Ga. 224 (28 S. E. 638); Sheats v. City of Rome, 92 Ga. 535 (17 S. E. 922); Johns v. Georgia Ry. & Elec. Co., 133 Ga. 525 (66 S. E. 269); Moore v. Southern Ry. Co., 136 Ga. 872, 875 (72 S. E. 403); Southern Railway Co. v. Dickson, 138 Ga. 371 (5) (75 S. E. 462); Lotoe v. Payne, 156 Ga. 312 (118 S. E. 924); Vaissiere v. J. B. Pound Hotel Co., 184 Ga. 72 (2) (190 S. E. 354); Culbreath v. Kutz Co., 37 Ga. App. 425 (2) (140 S. E. 419); Collett v. Atlanta, Birmingham &c. R. Co., 51 Ga. App. 637 (181 S. E. 207); Taylor v. Morgan, 54 Ga. App. 426 (188 S. E. 44).

While it is generally the duty of the driver of an automobile to anticipate the presence of “other travelers” on the highway and to have due regard for their rights to the use thereof (Code § 68-304 (now Code, Ann. Supp., § 68-1658); Eubanks v. Mullis, 51 Ga. App. 728, 181 S. E. 604; Garmon v. Cassell, 78 Ga. App. 730, 52 S. E. 2d 631; and other decisions cited by the Court of Appeals in this case in 91 Ga. App. 277, 285, 85; S. E. 2d 542), that court erred in applying this rule in the instant case, for the reason that public highways are established and maintained primarily for the purposes of travel and transportation by the public, and uses incidental thereto (25 Am. Jur. 456, § 163), but not as a place of repose. While “pedestrians” ordinarily have the legal right to the use of public highways for the purposes of travel (25 Am. Jur. 522, § 227), the Uniform Act Regulating Traffic on Highways (Ga. L. 1953, Nov.-Dec. Sess., p. 556; Code, Ann. Supp., § 68-1503) defines a pedestrian as “any person afoot.” Webster’s New International Dictionary, Second Edition, defines a pedestrian as “a walker; one who journeys on foot; a foot traveler.” See also 70 C. J. S. 383. The deceased in the instant case, while lying prone in the highway, in a drunken condition, was not a pedestrian using the highway for the purposes of travel, and the defendant therefore was under no duty to anticipate his presence upon the highway in that position, or to avoid injuring him until his presence became known to the driver, which, under the undisputed evidence, was at the time the automobile reached a point within 12 or 14 feet of his body, when it was impossible for the driver to avoid striking and injuring him.

Neither is the rule of contributory negligence and apportionment of damages applicable in the instant case. In Americus, Preston &c. R. Co. v. Luckie, 87 Ga. 6 (13 S. E. 105), this court said: “The law of contributory negligence is applicable only where both parties are at fault, and when, also, the plaintiff could not by ordinary care have avoided the injury which defendant’s negligence produced.” (Italics ours.) In Smith v. Central R. & Bkg. Co., 82 Ga. 801 (10 S. E. 111), it is said that where the injured party, by the use of ordinary care, could have avoided the consequences to himself of the defendant’s negligence, he is not entitled to recover. His failure in this respect does not stop with reducing the amount of damages, but defeats a recovery altogether. Nor is the last clear chance, or humanitarian doctrine, applicable to the defendant in the instant case. As pointed out by Judge Felton, in Bennett Drug Stores v. Mosely, 67 Ga. App. 347 (20 S. E. 2d 208), it is only after one finds another who has negligently placed himself in a position of peril, and because of his helplessness is unable to extricate himself from his position of peril, that the duty arises to use ordinary care to avoid injuring him. As there pointed out, it is only where the defendant knows of the plaintiff’s perilous situation, and realizes, or has reason to realize, the plaintiff’s helpless condition, that the defendant is charged with the duty of using with reasonable care and competence his then existing ability to avoid harming the plaintiff. Under the undisputed facts of this case, the defendant’s driver first discovered the presence of the deceased in the highway when his automobile was within 12 or 14 feet of his prone body, and at which time he did everything he could to avoid injuring him by swerving his truck in an effort to avoid striking the deceased.

Under the foregoing principles of law, the evidence in this case demanded a verdict for the defendant, and the trial judge erred in overruling the defendant’s motion for a new trial, and the Court of Appeals erred in affirming that judgment.

Judgment reversed.

All the Justices concur except Wyatt, P. J., absent on account of illness, and Mobley, J., who dissents. Head, J., concurs in the judgment only.