1. Where, as in this case, certain ordinances of a city are pleaded in the plaintiff's petition, but counsel for the plaintiff fails to introduce such ordinances in evidence, and during the interval between the closing arguments of counsel and the court's charge to the jury, this omission is called to the attention of counsel for both sides, and by a stipulation, approved by the court, counsel agree that the ordinances pleaded are valid, and in full force and effect, and such ordinances as pleaded in the petition are to be considered as having been introduced in evidence, the trial court does not err, when in its charge to the jury, it refers the jury to such admitted pleading in order to determine the provisions of the ordinances; nor is such action on the part of the court inconsistent with a later charge that the pleadings are not to be considered as evidence except as there may be admissions therein; nor, where the court charges fully upon the effect of such ordinances, is the court's failure to give the provisions of the ordinances in charge to be considered as a failure on the part of the court to charge the applicable principles of law with reference to such ordinances.
2. The evidence authorized the verdict and the trial court did not err in denying the motion for a new trial for any reason assigned.
Howard E. Malone brought an action for damages to his automobile against James Murphy in the Civil Court of Bibb County and alleged substantially the following facts: The defendant is a resident of Bibb County and subject to the jurisdiction of the Civil Court of Bibb County. The defendant is indebted to the plaintiff in the sum of $525 by reason of the following facts: On November 26, 1957, at about 2:35 p.m. the plaintiff was driving his 1953 model Buick sedan west on Napier Avenue and had stopped in the center traffic lane preparatory to making a left turn into the driveway of his home located on that avenue. At the time he had the directional signal on his car operating, indicating his intention of turning left into the driveway. The plaintiff had stopped in the center lane of the avenue to allow approaching traffic to pass. At this point on the avenue, traffic going west has two lanes in which to travel and traffic going east has only one lane. The division between the two east and the one west bound lanes is indicated by a yellow line marked on the avenue from the intersection of Pio Nono and Napier Avenues to a point east of the point at which the defendant's automobile collided with the plaintiff's. At time of the collision between the two automobiles the defendant's car was astride this yellow division line and traveling at a speed of fifty miles per hour. The defendant negligently and carelessly struck the plaintiff's Buick sedan with his Mercury sedan "head-on," and when the Mercury, which had been traveling east, came to rest, it was headed in a northerly direction. The following acts of negligence of the defendant are alleged to have been the proximate cause of the collision: (a) His operation of his Mercury in a reckless and negligent manner. (b) His failure to operate his Mercury so as to avoid damaging the plaintiff's Buick. (c) His failure to have his Mercury under control. (d) His failure to keep a proper lookout ahead. (e) His failure to apply the brakes on his Mercury in order to avoid colliding with the plaintiff's Buick. (g) His violation of the Traffic Code of the City of Macon, 82-910, as follows: "Traffic lanes. The Chief of Police is hereby authorized to establish and maintain two or more lanes of traffic on the streets of the City of Macon. On two-way streets where there are three lanes of traffic, the center lane shall be used in passing traffic going in the same direction; on such streets, operators of vehicles intending to turn to the right shall use the extreme right lane, and operators intending to turn to the left shall use the center lane. On two-way streets where there are four lanes, operators of vehicles intending to turn to the right shall use the extreme right lane, and those intending to turn to the left shall use the lane to the left thereof. On one-way streets operators of vehicles intending to turn to the right shall use the right lane and those intending to turn to the left shall use the left lane. It shall be unlawful for the operator of any vehicle to operate the same in such a manner as to cover part of two lanes or, as is commonly called straddling the lane." (h) His violation of the Traffic Code of the City of Macon, 82-1002, as follows: "Motor vehicles shall not be driven at a higher rate of speed than twenty-five (25) miles per hour . . ."
The plaintiff's Buick had a fair market value of $1,400 immediately prior to the collision and after the collision had a fair market value of only $875.
In his answer and cross-action the defendant admitted his residency, the jurisdiction of the court, and the fact that he was traveling in an easterly direction at the time of the collision. He denied the remaining allegations and in his cross-action alleged the following facts: Any damages sustained by the plaintiff were the result of his own negligence. The defendant himself sustained damages to his automobile in the sum of $415 as a result of the collision. Napier Avenue is a paved public street and highway and in the block where the two automobiles collided the street is within the city limits of Macon and is only thirty-five feet wide. At approximately 2:30 p.m. the defendant was driving easterly on Napier Avenue and the plaintiff was operating his vehicle in a westerly direction. When the defendant reached a point almost adjacent to the plaintiff's driveway, the plaintiff suddenly turned his automobile directly into the path of the defendant's automobile, causing a violent collision. Immediately prior to the collision the defendant's car was worth $500, but immediately thereafter it was worth only $85 as junk. All of the damages were due solely to the plaintiff's negligence: (a) In failing to yield the right of way to the defendant who was traveling along a boulevard upon which he had the right of way over traffic making turns out of the avenue; (b) In cutting his automobile across the highway into the path of the defendant's car; (c) In turning his automobile into and striking the defendant's automobile; (d) In turning his automobile across the highway when the way ahead of him was not clear of approaching traffic.
The jury found for the defendant in the amount of $415, the sum for which he sued, and against the plaintiff.
Appended to the motion for a new trial is the following note of the trial judge to special ground 1:
The plaintiff's motion for a new trial, based upon the usual general grounds and 4 special grounds, was denied, and he assigns error in the present bill of exceptions upon that judgment.
1. Each of the four special grounds of the motion for new trial assigns error upon the manner in which the trial court in its charge to the jury submitted the two ordinances of the City of Macon (Traffic Code of the City of Macon, 82-910 and 82-1002), which were pleaded by the plaintiff and introduced in evidence under the circumstances stated by the trial court in its charge to the jury and in its note to special ground 1; that is to say, by a stipulation between counsel for the parties during the interim between their arguments to the jury and the court's charge to the jury.
In special ground 1 the plaintiff complains of the following excerpts from the court's charge: "He (plaintiff) further alleges the defendant was negligent as shown by paragraph 10 of his petition, alleging therein certain alleged acts of negligence, including the allegation that the defendant violated City of Macon Traffic Code Section 82-910 and also 82-1002. Pursuant to agreement of counsel for the parties, these identified sections of said traffic code are in evidence, and it is stipulated by counsel that they are of force and effect and valid. You will find that they are identified and copied in paragraph 10 of the plaintiff's petition and you should read them and consider them together with all the other evidence in the case when you go to the jury room to make your verdict . . . The plaintiff claims the defendant violated certain municipal ordinances of the City of Macon which you will find plead in the petition of the plaintiff. When you go to the jury room you should read those ordinances as plead. They are in evidence by agreement of counsel."
These excerpts from the charge are alleged first to be erroneous, misleading and confusing in that the court had instructed the jury to refer to the pleadings to determine what the municipal-ordinances provided when the court had previously charged the jury as follows:
"The pleadings are not evidence and have no probative value; that is, they prove nothing except as there may be admissions therein; but you are authorized to read the same for a more specific elaboration of the contentions of the parties and of the case which you are to decide." Secondly, it is alleged that the excerpts from the charge are not sound as abstract principles of law as it is the duty of the court to charge the law applicable to the pleadings and evidence in the case, and to charge the substantial and essential law of the case and the excerpts from the charge do not comply with this duty.
In special ground 2 error is assigned upon the following excerpts from the charge:
". . . and you should read them [city ordinances pleaded in plaintiff's petition] and consider them together with all the other evidence in the case when you go to the jury room to make your verdict."
The fallacy attributed to this excerpt is that the court, by implication, instructed the jury that the charge was evidence which they should consider with all the other evidence, when the ordinances were not evidence but municipal laws which should have been charged without request.
In special ground 3 error is assigned upon the court's failure to submit to the jury, without request, the terms of the ordinances. The vices attributed to the court's failure to charge the exact language of the ordinances are that the ordinances are principles of law applicable to material issues in the case which were supported by the evidence; such charges were pertinent and applicable to the facts in the case; such charges were essential laws of the case; the failure to charge such ordinances was a failure to charge on substantial issues in the case presented by the evidence and pleadings; and it was the duty of the court, without request, to instruct the jury on every substantial issue presented by the evidence and pleadings.
Special ground 4 is but an elaboration, if not a mere reiteration of special ground 3.
While these special grounds have been set forth at quite some length, each of the grounds is but a slightly varying facet of the same question and will be determined here together. Under the circumstances of this case, we think the court's charge is not subject to any of the criticisms lodged against it. A thorough examination of the charge shows it to have been full and fair and to have covered every substantial issue and principle of law raised by the pleadings and the evidence. No request was made for a more elaborate charge. While the plaintiff pleaded the two ordinances of the City of Macon, counsel for the plaintiff forgot to introduce copies of the ordinances in evidence. This omission was called to the attention of counsel for both sides by the court during the interval between their closing arguments and the court's charge. By stipulation between counsel it was agreed that the ordinances, as they appeared in the pleadings of the plaintiff, would be considered to be in evidence, and it was conceded that they were valid ordinances in full force and effect at the time of the collision. For all practical purposes, this stipulation constituted an admission on the part of the defendant that the plaintiff's pleadings contained the true and correct provisions of the ordinances, which were valid and in full force and effect at the time of the collision. The court's action in referring the jury to the pleadings in order to determine the exact provisions of the ordinances was in nowise improper or erroneous. (Brantly v. Huff, 62 Ga. 532
; Hodgkins v. State, 89 Ga. 761
, 15 S. E. 695; Jones v. State, 130 Ga. 274
, 286, 60 S. E. 840; Carroll v. Taylor, 87 Ga. App. 815
, 75 S. E. 2d 346). Nor was the court's action, under the circumstances, in referring the jury to the plaintiff's petition for the provisions of the ordinances, inconsistent with its later charge that the pleadings are not evidence, or calculated to mislead or confuse the jury. While no one will gainsay the plaintiff's contention that it is the court's duty to charge the jury upon every principle of law applicable to the case (Gainesville & Northwestern R. Co. v. Galloway, 17 Ga. App. 702
, 87 S. E. 1093), the law applicable to this case was not the ordinances themselves, but the legal effect of the ordinances; that is to say, that a violation of either of the two ordinances would constitute negligence per se. This principle of law was given fully in charge to the jury. See Folds v. City Council of Augusta, 40 Ga. App. 827
(151 S. E. 685), and cit.; Western & Atlantic R. v. Swigert, 57 Ga. App. 274
(195 S. E. 230), and cit.
2. As the jurors are the sole arbiters of the credibility of the witnesses and of questions of fact, and they have resolved the conflicting evidence in favor of the defendant Murphy and against the plaintiff Malone in the main action, and in favor of the plaintiff Murphy and against the defendant Malone in the cross-action, this court must construe the evidence in a light most favorable to the verdict. Under such a construction it appears that the jury was authorized to find that: Malone, traveling west on Napier Avenue with the intention of turning left across the avenue into his driveway, had stopped his car next to the curb in the lane provided for right turns, in violation of a city ordinance; at the time he proceeded to turn and cross the avenue he had his signal light operating to indicate a left turn, but was looking to the rear and to the left over his shoulder to see if any traffic was approaching from the east; when he first saw Murphy's car approaching in the lane provided for traffic moving from west to east, Murphy was within thirty feet of him, yet he crossed over the line dividing east and west bound traffic into the path of Murphy's car; Murphy, who was traveling at 25 miles per hour in compliance with the city ordinance, endeavored to avoid colliding with Malone's car by swerving to the right, but was confronted by a telephone post and therefore endeavored to avoid the post and go around Malone's car, but was unable to do so; at the time Murphy saw Malone's car, it was standing still; at the time Malone drove into the path of Murphy's car, Murphy could not in the exercise of ordinary care stop his car in so short a distance (thirty feet) so as to avoid colliding with Malone's vehicle; the sole proximate cause of the collision and damages to Malone's car and to Murphy's car was Malone's negligence, which Murphy could not avoid in the exercise of ordinary care; and that Murphy was guilty of no negligence under the circumstances shown. The evidence authorized the verdict and the trial court did not err in denying the motion for a new trial for any reason assigned.