1. The trial judge erred in instructing the jury that it was negligence per se for an ambulance, even on an emergency call, to fail to stop at a traffic control light when the color was red.
2. It is error for the trial judge to charge on the doctrine of "accident" when it has neither been pleaded as a defense nor raised as an issue by the evidence.
3. It was error for the trial judge to eliminate from the jury's consideration the theory that the plaintiff's damages could have been caused by the concurrent negligence of the defendant and a third party.
Royal Cab Company, Inc., filed an attachment against the automobile of Hiram Hendrix in the City Court of Savannah. The defendant filed a replevy and bond. The plaintiff filed its declaration in attachment which alleged in part: that petitioner's driver on Thursday, May 24th, 1956, at 11 p. m. was driving one of petitioner's cabs, a 1956 Ford, northwardly on Montgomery Street. On reaching the intersection of Montgomery Street and Victory Drive, located in the City of Savannah, petitioner's driver brought the cab to a standstill, in accordance with the signal of the traffic signal light controlling traffic at said intersection, which showed red on Montgomery Street requiring Montgomery Street traffic to come to a halt; defendant, driving a 1954 Ford southwardly on Montgomery Street, negligently drove his car through the red light, which caused the cab driven by him to collide with an ambulance from the Holland Funeral Home, which ambulance was proceeding eastwardly on Victory Drive; on the collision of defendant's car with the ambulance, defendant's car was knocked in a southwesterly direction into the cab owned by petitioner, which, at the time of the collision, was standing still on the right-hand side of Montgomery Street in its proper line of traffic, waiting for the traffic light to change; defendant, Hiram Hendrix was driving said vehicle, at the time of said collision, at a rate of speed in excess of 25 miles per hour, in violation of an ordinance of the City of Savannah and negligently drove through a red traffic signal light in violation of the ordinance of the City of Savannah, and the laws of the State of Georgia; that petitioner's damage was caused through the negligence of the defendant, Hiram Hendrix, in the following particulars, to wit: (a) Negligence per se in driving at a speed in excess of twenty-five (25) miles per hour in violation of the following ordinance of the City of Savannah, to wit: Grayson's "Code of Savannah--Section 59--203--Speed limits. No vehicle shall be driven at a speed greater than twenty-five (25) miles per hour on any street in the City of Savannah south of Oglethorpe Avenue. No vehicle shall be driven at a speed greater than twenty-five (25) miles per hour on any street in the City of Savannah north of Oglethorpe Avenue. Ordinance adopted and approved March 16, 1937." (b) Negligence per se in driving through a red light duly established by ordinance of Mayor and Aldermen passed in Council July 24, 1949, in violation of the following ordinance of the City of Savannah, to wit: Grayson's "Code of Savannah--Section 59--201--Traffic signals. It shall be unlawful for any person, firm or corporation to drive or operate any automobile, wagon or other vehicle across any street intersection where there is now stationed, or may hereafter be stationed, a traffic light when said traffic light shows red in the direction from which the operator is coming. This ordinance shall not repeal the existing ordinance allowing operator of vehicles to turn to the right on the red signal. Ordinance adopted and approved March 26, 1939," and the laws of the State of Georgia. (c) Negligence per se in taking the right of way from an ambulance on an emergency call in violation of the following ordinance of the City of Savannah, to wit: Grayson's "Code of Savannah--Section 59--130--Other traffic regulations. (a) All vehicles carrying United States mail, and police and fire department vehicles, and
ambulances and physicians when responding to emergency calls shall have the right of way over all other traffic," and in violation of the Laws of the State of Georgia pertaining thereto; (d) Negligence in failing to keep a proper lookout so as to avoid damaging the property of others.
The defendant's answer denied the material allegations of the petition.
There was conflicting evidence as to whether the defendant or the ambulance driver had the green light, each insisting that the traffic control light was green when they passed under it.
The jury returned a verdict for the defendant. The plaintiff's motion for new trial was denied and it excepts.
1. Special ground 1 of the amended motion for a new trial assigns as error the following charge: "A valid existing ordinance of the City of Savannah, contained in Grayson's Code of Savannah, Section 59--130, provides that all vehicles carrying United States mail, and police and fire department vehicles, and ambulances and physicians when responding to emergency calls shall have the right of way over all other vehicles, however, this ordinance does not permit an ambulance, even when on emergency call, to disregard a traffic control signal and to run through a red light. It is negligence per se, or negligence as a matter of law, for an ambulance even on an emergency call to fail to stop at a traffic control light when the color is red."
The plaintiff insists this charge was not correct as an abstract principle of law. With this contention we agree. Prior to the passage of the Uniform Act Regulating Traffic on the highways in the absence of any specific ordinance exempting an ambulance driver from obeying traffic signal lights it was negligence per se for an ambulance, even on an emergency call, to fail to stop at a traffic control light when it was red. Tribble v. Ga. Power Co., 91 Ga. App. 528
(86 S. E. 2d 355). However, Code (Ann.) 68-1604 (a) reads: "Authorized emergency vehicles.--(a) The driver of an authorized emergency vehicle, when responding to an emergency call, or when in the pursuit of an actual or suspected violator of the law, or when responding to but not upon returning from a fire alarm, may exercise the privileges set forth in this section, but subject to the conditions herein stated. (b) The driver of an authorized emergency vehicle may: . . . 2. Proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation."
The trial judge erred in instructing the jury that it was negligence per se for an ambulance, even on an emergency call, to fail to stop at a traffic control light when the color was red.
2. Special ground 2 complains that the trial judge erred in charging on the theory of accident. "In its proper use the term 'accident' excludes negligence; that is, an accident is an event which occurs without the fault, carelessness, or want of proper circumspection of the person affected, or which could not have been avoided by the use of that kind and degree of care necessary to the exigency and in the circumstances in which he was placed." Black's Law Dictionary, p. 23.
In the present case it is clear from the evidence that the damage was caused by the negligence of the defendant or the ambulance driver, or both. The doctrine or defense of "accident" was neither pleaded as a defense nor raised as an issue by the evidence and the trial judge erred in instructing the jury on this doctrine. Morrow v. Southeastern Stages, 68 Ga. App. 142
(22 S. E. 2d 336); Bush v. Skelton, 91 Ga. App. 83
(84 S. E. 2d 835); Riggs v. Watson, 77 Ga. App. 62
(47 S. E. 2d 900).
3. Special ground 3 complains that the trial judge erred in instructing the jury as follows: "There is no negligence charged on the part of the plaintiff, the sole question is whether the damages suffered by the plaintiff were caused by the negligence of the defendant or the negligence of the ambulance driver, that is actually the question involved." The plaintiff insists that the charge was error because it eliminated from consideration by the jury the question that the plaintiff's damage could have been caused by concurrent negligence of the two parties. We concur with the plaintiff in this contention. There was evidence from which the jury would have been authorized to find that the negligence of both the defendant and the ambulance driver concurred to cause the plaintiff's damage. Therefore, the trial judge erred in eliminating this theory from the jury's consideration. Harri- son v. League, 93 Ga. App. 718
(92 S. E. 2d 595); Kelly v. Locke, 186 Ga. 620
(198 S. E. 754).
4. Special ground 4 assigned as error the court's omitting without request, to charge the provisions of Code sections relating to the duty of the driver of an emergency vehicle in approaching a crossing and passing over the same counter to the traffic control signal, that is, against the red light shown by such signal.
In view of what has been held in division 1 of this opinion it is not necessary to pass on this ground.
Judgment reversed. Felton, C. J., and Nichols, J., concur.