2020 Georgia Code
Title 51 - Torts
Chapter 11 - Defenses to Tort Actions
Article 1 - General Provisions
§ 51-11-7. Effect of Plaintiff's Failure to Avoid Consequences of Defendant's Negligence

Universal Citation: GA Code § 51-11-7 (2020)

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.

(Orig. Code 1863, § 2914; Code 1868, § 2921; Code 1873, § 2972; Code 1882, § 2972; Civil Code 1895, § 3830; Civil Code 1910, § 4426; Code 1933, § 105-603.)

Cross references.

- Effect of contributory negligence of railroad employee on liability of employer for injury or death of employee, § 34-7-42.

Law reviews.

- For article, "Comparative Negligence in Georgia," see 8 Ga. B. J. 51 (1945). For article discussing defenses to action for wrongful death in Georgia, see 22 Ga. B. J. 459 (1960). For article discussing products liability and plaintiff's fault under the Uniform Comparative Fault Act, see 29 Mercer L. Rev. 373 (1978). For article discussing plaintiff conduct and the emerging doctrine of comparative causation of torts, see 29 Mercer L. Rev. 403 (1978). For article, " 'Pure' vs. 'Modified' Comparative Fault: Notes on the Debate," see 34 Emory L.J. 65 (1985). For article, "Reappraising the Jury's Role as Finder of Fact," see 20 Ga. L. Rev. 123 (1985). For article, "Products Liability Law in Georgia Including Recent Developments," see 43 Mercer L. Rev. 27 (1991). For article, "Sexual Harassment Claims Under Georgia Law," see 6 Ga. St. B. J. 16 (2000). For note discussing last clear chance doctrine in Georgia, see 13 Ga. B. J. 104 (1950). For note, "Plaintiff's Last Clear Chance and Comparative Negligence in Georgia," see 6 Ga. St. B. J. 47 (1969). For comment criticizing weaknesses in Georgia comparative negligence doctrine, in light of Jones v. Yuma Motor Freight Term., 45 Cal. App. 2d 497, 114 P.2d 438 (1941), see 4 Ga. B. J. 68 (1941). For comment criticizing Thomas v. Shaw, 217 Ga. 688, 124 S.E.2d 396 (1962), as to assumption of risk on a golf course, see 14 Mercer L. Rev. 295 (1962). For comment on Waulker Hauling Co. v. Johnson, 110 Ga. App. 620, 139 S.E.2d 496 (1964) and the doctrine of rescue, see 16 Mercer L. Rev. 363 (1964). For comment discussing comparative negligence and the retention of the last clear chance doctrine, see 1 Ga. St. B. J. 501 (1965). For comment discussing Bentzler v. Braun, 34 Wis. 2d 362, 149 N.W.2d 626 (1967), as to plaintiff's failure to use a seat belt as constituting contributory or comparative negligence in automobile injury cases, see 2 Ga. L. Rev. 110 (1967). For comment discussing Brown v. Kendrick, 192 So. 2d 49 (Fla. 1966), and suggesting contributory negligence ramifications of failure of guest passengers to use seatbelts in Georgia, see 18 Mercer L. Rev. 511 (1967). For comment discussing Georgia's comparative negligence laws in light of Maki v. Frelk, 85 Ill. App. 2d 439, 229 N.E.2d 284 (1967), see 19 Mercer L. Rev. 486 (1968). For comment on Stukes v. Trowell, 119 Ga. App. 651, 168 S.E.2d 616 (1969), as to jury question of assumption of risk by a guest in an automobile the driver of which has been drinking, see 22 Mercer L. Rev. 487 (1971). For comment discussing Georgia law as to a defendant's right to bring in any party responsible to him for damages sought by the plaintiff, and comparing the approach of Dole v. Dow Chem. Co., 30 N.Y.2d 143, 282 N.E.2d 288, 331 N.Y.S.2d 382 (1972), see 24 Mercer L. Rev. 697 (1973). For comment, "Treatment of Guest Passengers: Georgia Maintains Its Minority Rule," see 31 Mercer L. Rev. 1061 (1980). For comment, "Proposed Solutions to an 'Obvious' Problem in Georgia Products Liability Law," see 35 Mercer L. Rev. 915 (1984).

JUDICIAL DECISIONS

ANALYSIS

  • General Consideration
  • Applicability to Specific Cases

General Consideration

1. In General

This section applies to suits for personal injuries and for damages to property. Savannah, F. & W. Ry. v. Stewart, 71 Ga. 427 (1883); Miller v. Smythe, 95 Ga. 288, 22 S.E. 532 (1895); Mansfield v. Richardson, 118 Ga. 250, 45 S.E. 269 (1903); Wilson v. Central of Ga. Ry., 132 Ga. 215, 63 S.E. 1121 (1909).

This section applies only when there is a negligent plaintiff. Atlantic Coast Line R.R. v. Coxwell, 93 Ga. App. 159, 91 S.E.2d 135 (1955).

Contributory and comparative negligence apply to professional negligence and negligent misrepresentation claims.

- See Prime Retail Dev., Inc. v. Marbury Eng'g Co., 270 Ga. App. 548, 608 S.E.2d 534 (2004).

Plaintiff cannot recover if the plaintiff's negligence is the proximate cause of the plaintiff's injuries. Willis v. Jones, 89 Ga. App. 824, 81 S.E.2d 517 (1954).

"Avoid" construed.

- The word "avoid" in this section has a broad and comprehensive meaning. Mansfield v. Richardson, 118 Ga. 250, 45 S.E. 269 (1903).

"Other cases" construed.

- "Other cases," as used in this section, are manifestly those in which the plaintiff could not by the exercise of ordinary care have avoided the consequences of the defendant's negligence; in cases of that kind, both parties being at fault and the damages are apportioned. Happy Valley Farms, Inc. v. Wilson, 192 Ga. 830, 16 S.E.2d 720 (1941).

Equal knowledge rule.

- The "equal knowledge rule" is the practical application of a rule that a knowledgeable plaintiff cannot recover damages if by ordinary care the plaintiff could have avoided the consequences of the defendant's negligence. Clark v. Carla Gay Dress Co., 178 Ga. App. 157, 342 S.E.2d 468 (1986).

The superior/equal knowledge rule is applicable when the proprietor allows a dangerous condition to exist, including cases when the alleged dangerous condition is one created by the activities of third persons, so long as the condition is one which the invitee can expect equally with the host, or come to know of, and therefore must anticipate the danger. In other words, the condition even if created by third parties must be such that the invitee can indeed have equal knowledge and either assumes the risk or can avoid the danger with ordinary care. Clark v. Carla Gay Dress Co., 178 Ga. App. 157, 342 S.E.2d 468 (1986); O'Steen v. Rheem Mfg. Co., 194 Ga. App. 240, 390 S.E.2d 248 (1990).

Distraction theory.

- The fact that the plaintiff, a patron at a show, was distracted by the plaintiff's children at the time the plaintiff slipped on a discarded bag on the stairs did not excuse the plaintiff's lack of ordinary care after it was established that the plaintiff knew of the condition of the steps which the plaintiff had used prior to the plaintiff's fall. Batten v. J.H. Harvey Co., 223 Ga. App. 262, 477 S.E.2d 400 (1996).

Cited in Southwestern R.R. v. Johnson, 60 Ga. 667 (1878); Berry v. Northeastern R.R., 72 Ga. 137 (1883); Smith v. Central R.R. & Banking Co., 82 Ga. 801, 10 S.E. 111 (1889); Seats v. Georgia M. & G.R.R., 86 Ga. 811, 13 S.E. 88 (1891); Southern Ry. v. Blake, 101 Ga. 217, 29 S.E. 288 (1897); Western & Atl. R.R. v. Rogers, 104 Ga. 224, 30 S.E. 804 (1898); Western & Atl. R.R. v. Burnham, 123 Ga. 28, 50 S.E. 984 (1905); Seaboard Air-Line Ry. v. Bostock, 1 Ga. App. 189, 58 S.E. 136 (1907); Southern Ry. v. Wallis, 133 Ga. 553, 66 S.E. 370 (1909); Central of Ga. Ry. v. Brown, 138 Ga. 107, 74 S.E. 839 (1912); Alabama Great S.R.R. v. Brown, 138 Ga. 328, 75 S.E. 330 (1912); Atlantic Coast Line R.R. v. Canty, 12 Ga. App. 411, 77 S.E. 659 (1913); Collum v. Georgia Ry. & Elec. Co., 140 Ga. 573, 79 S.E. 475 (1913); Rome Ry. & Light Co. v. Barna, 16 Ga. App. 1, 84 S.E. 209 (1915); Southern Cotton Oil Co. v. Caleb, 143 Ga. 585, 85 S.E. 707 (1915); Georgia S. & Fla. Ry. v. Thornton, 144 Ga. 481, 87 S.E. 388 (1915); Central of Ga. Ry. v. Tapley, 145 Ga. 792, 89 S.E. 841 (1916); Louisville & Nashville R.R. v. Faust, 30 Ga. App. 310, 117 S.E. 761 (1923); Peeples v. Louisville & Nashville R.R., 37 Ga. App. 87, 139 S.E. 85 (1927); Mills v. Barker, 38 Ga. App. 734, 145 S.E. 502 (1928); Parker v. Miller, 41 Ga. App. 560, 153 S.E. 619 (1930); Central of Ga. Ry. v. Leonard, 49 Ga. App. 689, 176 S.E. 137 (1934); Southern Ry. v. Jett, 49 Ga. App. 638, 176 S.E. 700 (1934); Cowan v. Georgia R.R. & Banking Co., 52 Ga. App. 677, 184 S.E. 635 (1936); Abelman v. Ormond, 53 Ga. App. 753, 187 S.E. 393 (1936); Hunt v. Pollard, 55 Ga. App. 423, 190 S.E. 71 (1937); Vaissiere v. J.B. Pound Hotel Co., 184 Ga. 72, 190 S.E. 354 (1937); Georgia R.R. & Banking Co. v. Sewell, 57 Ga. App. 674, 196 S.E. 140 (1938); Pollard v. Boatwright, 57 Ga. App. 565, 196 S.E. 215 (1938); Davis v. Williams, 58 Ga. App. 274, 198 S.E. 357 (1938); Wallace v. Howard, 58 Ga. App. 428, 198 S.E. 812 (1938); Oast v. Mopper, 58 Ga. App. 506, 199 S.E. 249 (1938); Thompson v. Powell, 60 Ga. App. 796, 5 S.E.2d 260 (1939); Gazaway v. Nicholson, 61 Ga. App. 3, 5 S.E.2d 391 (1939); Coble v. Georgia Motor Express, 62 Ga. App. 566, 8 S.E.2d 724 (1940); Benton Rapid Express, Inc. v. Sammons, 63 Ga. App. 23, 10 S.E.2d 290 (1940); Georgia Power Co. v. Weaver, 68 Ga. 652, 23 S.E.2d 730 (1942); Lord v. Southern Ry., 70 Ga. App. 273, 28 S.E.2d 299 (1943); Georgia Stages, Inc. v. Pitman, 71 Ga. App. 671, 31 S.E.2d 887 (1944); Sprague v. Atlanta Biltmore Hotel Co., 71 Ga. App. 849, 32 S.E.2d 534 (1944); Southern Ry. v. Watson, 74 Ga. App. 317, 39 S.E.2d 707 (1946); Porter v. Southern Ry., 74 Ga. App. 546, 40 S.E.2d 438 (1946); Atlanta Gas Light Co. v. Johnson, 76 Ga. App. 413, 46 S.E.2d 191 (1948); Nabors v. Atlanta Biltmore Corp., 77 Ga. App. 730, 49 S.E.2d 688 (1948); Baggett v. Jackson, 79 Ga. App. 460, 54 S.E.2d 146 (1949); Martin v. Waltman, 82 Ga. App. 375, 61 S.E.2d 214 (1950); Hogan v. Williams, 193 F.2d 220 (5th Cir. 1951); Hubert v. Knox Corp., 86 Ga. App. 449, 71 S.E.2d 770 (1952); L.R. Sams Co. v. Waters, 87 Ga. App. 501, 74 S.E.2d 386 (1953); State Constr. Co. v. Johnson, 88 Ga. App. 651, 77 S.E.2d 240 (1953); Metropolitan Life Ins. Co. v. Talbot, 205 F.2d 529 (5th Cir. 1953); United States v. Gallops, 207 F.2d 48 (5th Cir. 1953); White v. Thacker, 89 Ga. App. 656, 80 S.E.2d 699 (1954); Sheetz v. Welch, 89 Ga. App. 749, 81 S.E.2d 319 (1954); Central of Ga. Ry. v. Gibson, 90 Ga. App. 512, 83 S.E.2d 271 (1954); United States v. Adams, 212 F.2d 912 (5th Cir. 1954); Pickering v. Wagnon, 91 Ga. App. 610, 86 S.E.2d 621 (1955); James v. Smith, 92 Ga. App. 131, 88 S.E.2d 179 (1955); Stephens v. Tatum, 92 Ga. App. 256, 88 S.E.2d 456 (1955); Motor Convoy, Inc. v. Moore, 92 Ga. App. 551, 88 S.E.2d 727 (1955); White v. City of Manchester, 92 Ga. App. 642, 89 S.E.2d 581 (1955); State Park Marina v. Muller, 92 Ga. App. 689, 89 S.E.2d 826 (1955); Atlantic Coast Line R.R. v. Kammerer, 239 F.2d 115 (5th Cir. 1956); Padgett v. Central of Ga. Ry., 95 Ga. App. 96, 96 S.E.2d 658 (1957); Buchanan v. Atlanta Newspaper, Inc., 95 Ga. App. 428, 98 S.E.2d 96 (1957); Thomson Pipe Line Co. v. Davis, 96 Ga. App. 372, 100 S.E.2d 114 (1957); F.E. Fortenberry & Sons v. Malmberg, 97 Ga. App. 162, 102 S.E.2d 667 (1958); Brock v. Avery Co., 99 Ga. App. 881, 110 S.E.2d 122 (1959); Allen v. Gornto, 100 Ga. App. 744, 112 S.E.2d 368 (1959); Noland v. England, 101 Ga. App. 306, 113 S.E.2d 649 (1960); Andrews Taxi & U-Drive It Co. v. McEver, 101 Ga. App. 383, 114 S.E.2d 145 (1960); Moorman v. Williams, 103 Ga. App. 726, 120 S.E.2d 312 (1961); Myrick v. Sievers, 104 Ga. App. 95, 121 S.E.2d 185 (1961); Ferguson v. Gurley, 105 Ga. App. 575, 125 S.E.2d 218 (1962); Davis v. Harrell Concrete Prods., Inc., 105 Ga. App. 785, 125 S.E.2d 699 (1962); Beadles v. Smith, 106 Ga. App. 31, 126 S.E.2d 250 (1962); Law v. McIntyre, 106 Ga. App. 723, 127 S.E.2d 925 (1962); Central of Ga. Ry. v. Brower, 218 Ga. 525, 128 S.E.2d 926 (1962); 670 New Street, Inc. v. Smith, 107 Ga. App. 539, 130 S.E.2d 773 (1963); Moran v. Moody, 108 Ga. App. 350, 133 S.E.2d 98 (1963); Jackson v. Southern Ry., 317 F.2d 532 (5th Cir. 1963); B.C. Truck Lines v. Pilot Freight Carriers, Inc., 225 F. Supp. 1 (N.D. Ga. 1963); Farr v. Collins, 109 Ga. App. 37, 135 S.E.2d 65 (1964); Bell v. Camp, 109 Ga. App. 221, 135 S.E.2d 914 (1964); Wilbanks v. Carter, 110 Ga. App. 644, 139 S.E.2d 435 (1964); S & A Corp. v. Berger Co., 111 Ga. App. 39, 140 S.E.2d 509 (1965); Johnson v. Thompson, 111 Ga. App. 654, 143 S.E.2d 51 (1965); Hillhouse v. C.W. Matthews Contracting Co., 112 Ga. App. 73, 143 S.E.2d 686 (1965); Darlington Corp. v. Finch, 113 Ga. App. 825, 149 S.E.2d 861 (1966); Rainey v. Housing Auth., 114 Ga. App. 333, 151 S.E.2d 534 (1966); King v. Mention, 116 Ga. App. 209, 156 S.E.2d 488 (1967); Jacobs Pharmacy Co. v. Gipson, 116 Ga. App. 760, 159 S.E.2d 171 (1967); Wade v. Roberts, 118 Ga. App. 284, 163 S.E.2d 343 (1968); Seagraves v. Abco Mfg. Co., 118 Ga. App. 414, 164 S.E.2d 242 (1968); Jones v. Cloud, 119 Ga. App. 697, 168 S.E.2d 598 (1969); Gross v. Southern Ry., 414 F.2d 292 (5th Cir. 1969); Webb v. Standard Oil Co., 414 F.2d 320 (5th Cir. 1969); Hartz v. United States, 415 F.2d 259 (5th Cir. 1969); Hodge v. United States, 310 F. Supp. 1090 (M.D. Ga. 1969); Lambert v. Ford Motor Co., 46 F.R.D. 46 (N.D. Ga. 1969); Seaboard Coast Line R.R. v. Clark, 122 Ga. App. 237, 176 S.E.2d 596 (1970); Wright v. Dilbeck, 122 Ga. App. 214, 176 S.E.2d 715 (1970); Harris v. Hub Motor Co., 124 Ga. App. 490, 184 S.E.2d 199 (1971); Morris v. Affleck, 437 F.2d 82 (5th Cir. 1971); Lanier v. Zayre of Ga., Inc., 125 Ga. App. 739, 188 S.E.2d 885 (1972); Seaboard Coast Line R.R. v. Mitcham, 127 Ga. App. 102, 192 S.E.2d 549 (1972); Chaffin v. Atlanta Coca-Cola Bottling Co., 127 Ga. App. 619, 194 S.E.2d 513 (1972); Cagle v. Atchley, 127 Ga. App. 668, 194 S.E.2d 598 (1972); Kirkland v. Moore, 128 Ga. App. 34, 195 S.E.2d 667 (1973); Southern States, Inc. v. Thomason, 128 Ga. App. 667, 197 S.E.2d 429 (1973); Jones v. Petroleum Carrier Corp., 483 F.2d 1369 (5th Cir. 1973); Simmons v. Classic City Beverages, Inc., 136 Ga. App. 150, 220 S.E.2d 734 (1975); Queen v. Bair, 137 Ga. App. 30, 223 S.E.2d 8 (1975); Mealey v. Slaton Mach. Sales, Inc., 508 F.2d 87 (5th Cir. 1975); Wallace v. Ener, 521 F.2d 215 (5th Cir. 1975); Ford Motor Co. v. Lee, 137 Ga. App. 486, 224 S.E.2d 168 (1976); White v. Seaboard C.L.R.R., 139 Ga. App. 833, 229 S.E.2d 775 (1976); Bickford v. Nolen, 142 Ga. App. 256, 235 S.E.2d 743 (1977); Lawhorn v. Gulf Oil Corp., 145 Ga. App. 80, 243 S.E.2d 253 (1978); Hill v. Copeland, 148 Ga. App. 232, 250 S.E.2d 822 (1978); Georgia Farmers' Mkt. Auth. v. Dabbs, 150 Ga. App. 15, 256 S.E.2d 613 (1979); Georgia Power Co. v. Purser, 152 Ga. App. 181, 262 S.E.2d 473 (1979); Walt Disney Prods., Inc. v. Shannon, 247 Ga. 402, 276 S.E.2d 580 (1981); Findley v. McDaniel, 158 Ga. App. 445, 280 S.E.2d 858 (1981); Holmes v. Worthey, 159 Ga. App. 262, 282 S.E.2d 919 (1981)

McCoy v. Hankins, 159 Ga. App. 569, 284 S.E.2d 71 (1981); Gilbert v. Mayor of Athens, 655 F.2d 73 (5th Cir. 1981); Central of Ga. R.R. v. Wooten, 163 Ga. App. 622, 295 S.E.2d 369 (1982); Soucy v. Alexander, 172 Ga. App. 501, 323 S.E.2d 662 (1984); Sims Crane Serv., Inc. v. Ideal Steel Prods., Inc., 750 F.2d 884 (11th Cir. 1985); General Tel. Co. v. Hiers, 179 Ga. App. 105, 345 S.E.2d 652 (1986); Fuller v. Krystal Co., 179 Ga. App. 725, 347 S.E.2d 693 (1986); Hester v. Baker, 180 Ga. App. 627, 349 S.E.2d 834 (1986); McKinney & Co. v. Lawson, 257 Ga. 222, 357 S.E.2d 786 (1987); Glenn McClendon Trucking Co. v. Williams, 183 Ga. App. 506, 359 S.E.2d 351 (1987); Ellerbee v. Interstate Contract Carrier Corp., 183 Ga. App. 828, 360 S.E.2d 280 (1987); Branton v. Draper Corp., 185 Ga. App. 820, 366 S.E.2d 206 (1988); George v. Brandychase Ltd. Partnership, 841 F.2d 1094 (11th Cir. 1988); Harvey Freeman & Sons v. Stanley, 189 Ga. App. 256, 375 S.E.2d 261 (1988); Morris v. Barnet, 191 Ga. App. 382, 381 S.E.2d 597 (1989); Smith v. Wal-Mart Stores, Inc., 199 Ga. App. 808, 406 S.E.2d 234 (1991); Zumbado v. Lincoln Property Co., 209 Ga. App. 163, 433 S.E.2d 301 (1993); Gaydos v. Grupe Real Estate Investors, 211 Ga. App. 811, 440 S.E.2d 545 (1994); Turner v. Sumter Self Storage Co., 215 Ga. App. 92, 449 S.E.2d 618 (1994); Ingram v. Toccoa Triple Cinema, Inc., 222 Ga. App. 409, 474 S.E.2d 293 (1996); Roberts v. Dove, 234 Ga. App. 853, 508 S.E.2d 213 (1998); Baker v. Harcon, Inc., 303 Ga. App. 749, 694 S.E.2d 673 (2010).

2. Comparative Negligence Rule

This section represents change from common law contributory negligence rule, and the law which obtains in this state is the comparative negligence doctrine. Ohio S. Express Co. v. Beeler, 110 Ga. App. 867, 140 S.E.2d 235 (1965).

Plaintiff's duty to protect oneself.

- Georgia at an early time abandoned the common law rule that if a plaintiff was negligent at all the plaintiff was barred from recovery, for the common law rule Georgia substituted the comparative negligence rule, which changed the plaintiff's duty to protect the plaintiff's own safety from an absolute duty to the duty to exercise ordinary care. Under the "avoidance of consequences" rule, the plaintiff is not required to exercise more than ordinary care to avoid the consequences of the defendant's negligence. Underwood v. Atlanta & W. Point R.R., 105 Ga. App. 340, 124 S.E.2d 758, aff'd in part and rev'd in part, 218 Ga. 193, 126 S.E.2d 785 (1962).

Doctrine of contributory negligence as that term is used in common law is not law of Georgia; the doctrine which does obtain is that of comparative negligence. Ware v. Alston, 112 Ga. App. 627, 145 S.E.2d 721 (1965).

The doctrine of contributory negligence under the common law and that doctrine as modified by the rule of the last clear chance under the common law have no place in the rule of comparative negligence and apportionment of damages. Smith v. AMOCO, 77 Ga. App. 463, 49 S.E.2d 90 (1948), overruled on other grounds, Union Camp Corp. v. Helmy, 258 Ga. 263, 367 S.E.2d 796 (1988).

Doctrine which prevails in this state is more accurately designated as comparative negligence, rather than that of contributory negligence. Georgia Power Co. v. Maxwell, 52 Ga. App. 430, 183 S.E. 654 (1936).

Common law rule on contributory negligence.

- Under the common-law doctrine of contributory negligence which now prevails in most jurisdictions but which has been changed by statute in this state, if the negligence of the plaintiff, no matter how small, contributed to the injury sustained by the plaintiff, the plaintiff could not recover of the defendants; this doctrine did not diminish the damages but precluded a recovery. The doctrine which prevails in this state, by reason of the statutes, is more accurately and properly designated as that of comparative negligence rather than that of contributory negligence. Rogers v. McKinley, 48 Ga. App. 262, 172 S.E. 662 (1934); Georgia Power Co. v. Maxwell, 52 Ga. App. 430, 183 S.E. 654 (1936).

Comparative negligence.

- The concluding sentence of this section has reference alone to that class of cases in which the plaintiff could not by the exercise of ordinary care have avoided the consequences to the plaintiff caused by the defendant's negligence. Southern Ry. v. Watson, 104 Ga. 243, 30 S.E. 818 (1898).

Comparative negligence rule stated.

- Under the rule of comparative negligence, failure to exercise ordinary care on the part of the person injured before the negligence complained of is apparent or should have been reasonably apprehended will not preclude a recovery, but will authorize the jury to diminish the damages in proportion to the fault attributable to the person injured. Moore v. Sears, Roebuck & Co., 48 Ga. App. 185, 172 S.E. 680 (1934).

When evidence is of such nature as to authorize a finding that, while the defendant was negligent as charged, the plaintiff's injury was caused by the concurrent negligence of the plaintiff and the defendant, and the plaintiff's own negligence, not amounting to a total lack of ordinary care, was less than the negligence of the defendant, the jury will be unrestrained in comparing the negligence of the parties. Moore v. Sears, Roebuck & Co., 48 Ga. App. 185, 172 S.E. 680 (1934).

If the plaintiff could not have avoided the injury to the plaintiff caused by the defendants' negligence by the exercise of due care, then, if the plaintiff's negligence was less than that of the defendant, the plaintiff would be entitled to recover, but the amount of the verdict in the plaintiff's favor should be diminished in proportion to the amount of fault attributable to the plaintiff. Rogers v. McKinley, 48 Ga. App. 262, 172 S.E. 662 (1934).

The comparative negligence rule in force in this state is that when there is negligence by both parties which is concurrent and contributes to the injury sued for, a recovery by the plaintiff is not barred, but the plaintiff's damages shall be diminished by an amount proportioned to the amount of fault attributable to the plaintiff, provided that the plaintiff's fault is less than the defendants, and that, by the exercise of ordinary care, the plaintiff could not have avoided the consequences of the defendants' negligence after it became apparent or in the exercise of ordinary care should have been discovered by the plaintiff. Rogers v. McKinley, 48 Ga. App. 262, 172 S.E. 662 (1934); Georgia Power Co. v. Maxwell, 52 Ga. App. 430, 183 S.E. 654 (1936).

The comparative negligence rule does not defeat recovery by a negligent plaintiff unless it is made to appear that the plaintiff's negligence was the sole, or within the rule of the last clear chance doctrine, legal, proximate cause of the injury. United States v. Fleming, 115 F.2d 314 (5th Cir. 1940).

The comparative negligence rule in general provides for the reduction of the plaintiff's recovery when the plaintiff's negligence is a contributing cause. It abolishes the common law rule that contributory negligence is a bar to recovery and substitutes for it the comparative negligence rule that it is a ground for diminution of damages. United States v. Fleming, 115 F.2d 314 (5th Cir. 1940).

Under the rule of comparative negligence and apportionment of damages the plaintiff may recover, even though the plaintiff contributed in some way to the injury sustained, provided the plaintiff's negligence is less than that of the defendant, and the plaintiff could not, by the exercise of ordinary care, have avoided the negligence of the defendant; in such a case the damages will be apportioned. Southern Stages, Inc. v. Clements, 71 Ga. App. 169, 30 S.E.2d 429 (1944).

The doctrine of comparative negligence grants the jury the right to apportion the damages in the event they should determine under all the facts that the defendants were more negligent than the plaintiff, and to refuse a verdict favorable to the plaintiff in the event they should find that the negligence of the plaintiff was equal to or greater than that of the defendants. Lanier v. Turner, 73 Ga. App. 749, 38 S.E.2d 55 (1946).

If the plaintiff and the defendant were both negligent, the former can recover, unless the plaintiff's negligence was equal to or greater than the negligence of the defendant, except that this rule is further qualified by the provisions of this section, which provide that if the plaintiff, by ordinary care, could have avoided the consequences to oneself caused by the defendant's negligence, the plaintiff is not in such event entitled to recover. Atlantic Coast Line R.R. v. Mitchell, 157 F.2d 880 (5th Cir. 1946).

The true comparative negligence rule is that if a plaintiff and defendant are both guilty of negligence which concurs proximately to bring about an injury to a plaintiff, if the defendant's negligence is sufficient to predicate an action on ordinary negligence, and if the plaintiff is negligent and such negligence is not equal to or greater than that of the defendant, the plaintiff would still be entitled to recover, provided the plaintiff could not have avoided the consequences of the defendant's negligence by the exercise of ordinary care after it was actually discovered or should have been discovered by the exercise of ordinary care. Willis v. Jones, 89 Ga. App. 824, 81 S.E.2d 517 (1954).

As to a plaintiff, who is in some degree negligent personally, such negligence will not preclude, but will diminish recovery; but negligence in avoiding the perilous situation created by the defendant after it is or should have been plain to the plaintiff will render the plaintiff the sole author of the plaintiff's misfortune and thus preclude recovery. Atlantic Coast Line R.R. v. Coxwell, 93 Ga. App. 159, 91 S.E.2d 135 (1955).

This section is the source of the Georgia contributory comparative negligence concept under which a negligent plaintiff may recover unless the plaintiff's negligence is equal to (or greater than) that of the defendant, although damages will be reduced in proportion to the amount of negligence attributable to the plaintiff. Williams v. United States, 379 F.2d 719 (5th Cir. 1967).

Comparative negligence doctrine denies any recovery if the plaintiff's negligence equals or exceeds the defendant's negligence. Damages are proportionately reduced when the latter's fault exceeds that of the plaintiff. Thus, if each party is 50 percent at fault, there can be no recovery. But should the plaintiff's negligence be 49 percent, the plaintiff is entitled to recover 51 percent of the plaintiff's damages. Southern Ry. v. Brunswick Pulp & Paper Co., 376 F. Supp. 96 (S.D. Ga. 1974).

Even though one party is negligent, if it is lesser than the other party, there may be a recovery, but damages shall be diminished by the jury in proportion to the amount of negligence attributable to the other party. Allen v. State, 150 Ga. App. 109, 257 S.E.2d 5 (1979).

The doctrine of comparative negligence goes to the right of recovery as well as to the amount of damages. Whitby v. Maloy, 150 Ga. App. 575, 258 S.E.2d 181 (1979).

Georgia permits the comparison of any negligence on the part of the plaintiff to that of the defendant, and while both the negligence of the plaintiff and the defendant in any such comparison must be the proximate cause of the injury to the plaintiff, if the negligence of the plaintiff is equal to or greater than that of the defendant, the plaintiff may not recover from the defendant. Walton v. United States, 484 F. Supp. 568 (S.D. Ga. 1980).

If the tort-feasor is liable to the plaintiff for the wrongful death of the decedent, and if some negligence on the part of the decedent contributed to the decedent's injury, so long as the decedent's negligence was less than that of the tort-feasor, the decedent's negligence would not prevent a recovery for the decedent's wrongful death. Harden v. United States, 485 F. Supp. 380 (S.D. Ga. 1980), aff'd, 688 F.2d 1025 (5th Cir. 1982).

Concurrent contributory negligence of plaintiff is not bar, but is only ground to reduce recovery. Southern Ry. v. Wilbanks, 67 F.2d 424 (5th Cir. 1933), cert. denied, 291 U.S. 678, 54 S. Ct. 530, 78 L. Ed. 1066 (1934).

Contributory negligence will not always defeat recovery, but may only reduce it. Dixie Ohio Express Co. v. Lowery, 115 F.2d 56 (5th Cir. 1940).

This section makes the contributory negligence of a plaintiff proper to be considered, when pleaded, not in bar as at common law, but in reduction of damages in proportion to the amount of default attributable to the plaintiff. McCord v. Atlantic Coast Line R.R., 185 F.2d 603 (5th Cir. 1950).

Consistent with "equal/superior knowledge" rule.

- The law of comparative negligence (this section) is consistent with the "equal/superior knowledge" rule, when the plaintiff, who personally has the duty of ordinary care, cannot recover if the plaintiff's knowledge of the danger was equal to or greater than that of the proprietor of the premises. Colbert v. Piggly Wiggly S., 175 Ga. App. 44, 332 S.E.2d 304 (1985).

A plaintiff's negligence is to be compared to the aggregate negligence of all joint tortfeasors in determining the plaintiff's right of recovery. Unless the plaintiff's negligence is equal to or greater than the aggregate negligence of all the defendants, the plaintiff may recover. Therefore, a plaintiff whose comparative fault exceeds that of one defendant but does not exceed that of another defendant is entitled to a judgment against both defendants, assuming of course, that the rule of joint-and-several liability among joint tortfeasors is applicable in the case. Union Camp Corp. v. Helmy, 258 Ga. 263, 367 S.E.2d 796 (1988).

Possible impairment of plaintiff due to alcohol consumption does not demand a finding of contributory negligence. N.L. Indus., Inc. v. Madison, 176 Ga. App. 451, 336 S.E.2d 574 (1985).

3. Avoidance Doctrine

Contributory negligence.

- A recovery is defeated only when the plaintiff's contributory conduct amounts to failure to exercise ordinary care. Rollestone v. Cassierer & Co., 3 Ga. App. 161, 59 S.E. 442 (1907).

Closely allied to doctrine of contributory negligence is rule of "avoidable consequences," which denies recovery for any damages which could have been avoided by reasonable conduct on the part of the plaintiff. Osburn v. Pilgrim, 246 Ga. 688, 273 S.E.2d 118 (1980).

This section is generally known as the avoidance doctrine. Parham v. Roach, 131 Ga. App. 728, 206 S.E.2d 686 (1974).

Avoidance doctrine stated.

- When by the exercise of ordinary care the deceased could have avoided the consequence to the deceased caused by the defendant's negligence, a nonsuit was properly ordered. Atlantic Coast Line R.R. v. Anderson, 35 Ga. App. 292, 133 S.E. 63 (1926); Little v. Rome Ry. & Light Co., 35 Ga. App. 482, 133 S.E. 643 (1926).

This section applies when the plaintiff fails to exercise ordinary care to avoid the consequences of the defendant's negligence after the plaintiff could have become aware of it by the exercise of ordinary care as when the plaintiff actually knows of the defendant's negligence. Jones v. Alred, 41 Ga. App. 472, 153 S.E. 444 (1930).

The complainant is not entitled to recovery if by the exercise of ordinary care on the complainant's own part the complainant could have avoided the consequences of the defendant's negligence after it should have become known. Donaldson v. Central of Ga. Ry., 43 Ga. App. 480, 159 S.E. 738 (1931).

If a person is in a place of danger the person is under the duty not only to exercise ordinary care to avoid personal injury from dangers known to the person to exist, but the person is also bound to use that degree of care and caution which an ordinarily prudent person would exercise under similar circumstances to discover approaching danger and thereafter avoid the danger. Central of Ga. Ry. v. Dumas, 44 Ga. App. 152, 160 S.E. 814 (1931).

It is not sufficient to prevent a recovery that the plaintiff may have been lacking in ordinary care and diligence to avoid the injury, but it must appear that by the use of such ordinary care and diligence the plaintiff would have avoided the injury. Cooper v. Georgia Power Co., 44 Ga. App. 581, 162 S.E. 302 (1932).

Only when the injured party fails to exercise ordinary care to escape the consequences of negligence is a recovery entirely defeated. Weinstein v. Powell, 61 F.2d 411 (5th Cir. 1932).

The failure to exercise ordinary care to escape the consequences of the defendant's negligence which is a bar arises in situations in which the defendant's negligence exists first and is apparent or may readily be known, and the plaintiff, by the exercise of ordinary care, can escape its consequences but does not. It is the doctrine of "the last clear chance" applied to the plaintiff instead of to the defendant. Southern Ry. v. Wilbanks, 67 F.2d 424 (5th Cir. 1933), cert. denied, 291 U.S. 678, 54 S. Ct. 530, 78 L. Ed. 1066 (1934).

If the plaintiff, by the exercise of due care, could have avoided the consequences to the plaintiff caused by the negligence on the part of the defendants, when that negligence became apparent to the plaintiff, or when by the exercise of that due care upon the plaintiff's part should have become aware of it, the plaintiff is not entitled to recover. Rogers v. McKinley, 48 Ga. App. 262, 172 S.E. 662 (1934).

Contributory negligence on a plaintiff's part may serve to diminish the amount the plaintiff may be entitled to recover against a defendant, but the plaintiff's right to recover is not entirely defeated unless it appears that the plaintiff could by the use of ordinary care have avoided the consequences of the defendant's negligence. Lewis v. Powell, 51 Ga. App. 129, 179 S.E. 865 (1935).

The plaintiff can never recover in an action for personal injuries, no matter what the negligence of the defendant may be, short of actual wantonness, when the proof shows the plaintiff could by ordinary care, after the negligence of the defendant began or was existing, have avoided the consequences to the plaintiff of that negligence; the law of contributory negligence is applicable only when both parties are at fault and when the plaintiff could not by ordinary care have avoided the injury which the defendant's negligence produced. Pollard v. Kent, 59 Ga. App. 118, 200 S.E. 542 (1938).

When the petition, itself, alleges negligence on the plaintiff's part without which the injury would not have occurred, although the defendant may also have been negligent, in such a case this section applies, it being apparent that except for the negligence of the plaintiff the defendant's negligence would not have caused the injury. Goodman v. Fayette County, 61 Ga. App. 741, 7 S.E.2d 327 (1940).

A plaintiff cannot recover when the plaintiff fails, by the exercise of ordinary care, to avoid the consequences to the plaintiff of the defendant's negligence. Porter v. Southern Ry., 73 Ga. App. 718, 37 S.E.2d 831 (1946).

When an injury is the result of the plaintiff's own negligence, or when the plaintiff fails to exercise proper care for the plaintiff's own safety on discovering the negligence of the defendant, or when by the exercise of ordinary care the plaintiff could have apprehended the defendant's negligence, the plaintiff cannot recover; but even though the plaintiff was negligent in some manner, when the defendant's negligence caused the injury and was of a greater degree than the plaintiff's, still the plaintiff could recover, although the plaintiff's recovery would be diminished in proportion that the plaintiff's negligence compared with the negligence of the defendant. McDowall Transp., Inc. v. Gault, 80 Ga. App. 445, 56 S.E.2d 161 (1949).

A plaintiff is not entitled to recover if the plaintiff's injuries were caused by the plaintiff's own negligence or if by the exercise of ordinary care the plaintiff could have discovered the defendant's negligence and could have avoided the consequences thereof. Anderson v. Southern Ry., 88 Ga. App. 195, 76 S.E.2d 528 (1953).

The plaintiff in order to recover must have exercised ordinary care to avoid the consequences of negligence either actually discovered or which in the exercise of ordinary care might have been discovered. City of Commerce v. Bradford, 94 Ga. App. 284, 94 S.E.2d 160 (1956).

When the allegations of the petition showed that the plaintiff, with knowledge of the prior acts complained of, had full opportunity to avoid and escape the consequences thereof, the plaintiff was not entitled to recover though the defendant may have been in some respects negligent. Central of Ga. Ry. v. Roberts, 213 Ga. 135, 97 S.E.2d 149 (1957).

The defendant's negligence, the consequence of which the plaintiff could shun by the use of ordinary care, goes for nothing. Brown v. Atlanta Gas Light Co., 96 Ga. App. 771, 101 S.E.2d 603 (1957).

Ordinary care must be used both to apprehend and to avoid the consequences of another's negligence. Everett v. Clegg, 97 Ga. App. 387, 103 S.E.2d 432 (1958).

In this state, negligence of the plaintiff must be equal to or greater than that of the defendant to defeat recovery, except that lack of ordinary care in discovering and avoiding the negligence of the defendant after such negligence is or should have been known will defeat recovery regardless of its ratio to the defendant's negligence. Harmon v. Southwell, 98 Ga. App. 261, 105 S.E.2d 596 (1958).

The plaintiff would not be entitled to recover if the plaintiff could have avoided the injury by the use of ordinary care. City of Bainbridge v. Youngblood, 102 Ga. App. 195, 115 S.E.2d 696 (1960).

One who knows of another's negligence must take the actions of a reasonably prudent person to avoid the consequences or injury to oneself from the other's negligence. Redding v. Morris, 105 Ga. App. 152, 123 S.E.2d 714 (1961).

Negligence of the plaintiff concurring with that of the defendant as proximate cause of injury will diminish but not bar recovery, except in those cases when the plaintiff, knowing of the defendant's negligence, is thereafter negligent in failing to exercise ordinary care to avoid it; or when, although the plaintiff does not actually know of and avoid it, the failure to discover is itself negligence because the danger is in fact so apparent that a person in the exercise of ordinary care for the plaintiff's own safety, though under no duty to anticipate such negligence, would nevertheless have become aware of it; and, thirdly, the plaintiff will be barred if the plaintiff's negligence is the sole proximate cause of the plaintiff's injury. Wright v. Concrete Co., 107 Ga. App. 190, 129 S.E.2d 351 (1962).

There is no liability if the plaintiff, by the exercise of that degree of care which the law required of the plaintiff, could have avoided the consequences of any negligence of which the defendant may have been guilty. YMCA v. Bailey, 112 Ga. App. 684, 146 S.E.2d 324 (1965), cert. denied, 385 U.S. 868, 87 S. Ct. 131, 17 L. Ed. 2d 95 (1966).

The doctrine of comparative negligence is not applicable when, after the negligence of the defendant is actually apparent, the consequences of such negligence could have been avoided by ordinary care on the part of the plaintiff. Atlantic Coast Line R.R. v. Street, 116 Ga. App. 465, 157 S.E.2d 793 (1967).

When the proximate cause of the injury is referable to the conduct of the injured party after knowledge of the risk of injury, rather than to the defendant who first created the risk, the plaintiff cannot recover for injuries. Atlantic Coast Line R.R. v. Street, 116 Ga. App. 465, 157 S.E.2d 793 (1967).

A negligent plaintiff is completely barred from recovery from a negligent defendant if the plaintiff was in a position of danger because of the plaintiff's own failure to exercise ordinary care for the plaintiff's own safety, if the plaintiff failed to exercise ordinary care to avoid the consequences of the defendant's negligence after it was known or reasonably apprehensible to the plaintiff (the last clear chance applied to the plaintiff), or if the plaintiff's own contributory negligence was equal to or greater than that of the defendant. Seaboard Coast Line R.R. v. Daugherty, 118 Ga. App. 518, 164 S.E.2d 269 (1968), cert. denied, 397 U.S. 939, 90 S. Ct. 950, 25 L. Ed. 2d 120 (1970).

Plaintiff has a duty to exercise ordinary care to avoid the consequences of any negligence by the defendants when such is apparent or in the exercise of ordinary care should have become apparent to the plaintiff. Smith v. Poteet, 127 Ga. App. 735, 195 S.E.2d 213 (1972).

By allowing a breach of duty to occur and contributing to the potential for injury, a plaintiff cannot recover for the negligence of another. Walton v. United States, 484 F. Supp. 568 (S.D. Ga. 1980).

When evidence showed an employee for defendant gas station saw a woman and her attacker with no car or gas container fighting by a gas pump, and the employee then activated the pump for the attacker which allowed the woman to be sprayed with gas and set on fire, the district court's denial of the station's motion for judgment as a matter of law was proper, and because the evidence showed that the woman had previously calmed the attacker down, the jury could have reasonably found, under O.C.G.A. § 51-11-7, the woman was 25 percent negligent but that by ordinary care could not have avoided the consequences of the employee's negligent act of authorizing the pump to be used. Currie v. Chevron U.S.A., Inc., 266 Fed. Appx. 857 (11th Cir. 2008)(Unpublished).

Defendant is not relieved of liability unless plaintiff's negligence proximately caused injury.

- It is not sufficient to relieve the defendant of liability that the negligence of the decedent contributed to cause the injury complained of, unless such negligence of the decedent amounts to a proximate cause of the injury. Queen v. Patent Scaffolding Co., 46 Ga. App. 364, 167 S.E. 789 (1933).

If the decedent could not have avoided the injury caused by the defendant's negligence by the exercise of ordinary care, the defendant would not be relieved of the defendant's liability because the negligence of the decedent contributed in some way to the injury sustained. Queen v. Patent Scaffolding Co., 46 Ga. App. 364, 167 S.E. 789 (1933).

Defendant liable for willful injuries despite plaintiff's failure to use due care.

- The rule that one guilty of lack of ordinary care cannot recover for injuries sustained by the negligence of another does not extend to those cases when the acts of the party inflicting the injuries are willful and wanton. Humphries v. Southern Ry., 51 Ga. App. 585, 181 S.E. 135 (1935).

Since there was ample evidence to support willful negligence, under such circumstances the failure of the plaintiff to exercise ordinary care would not prevent recovery. Chitwood v. Stoner, 60 Ga. App. 599, 4 S.E.2d 605 (1939).

When the petition avers that the defendant's acts were "willful and malicious," the mere failure of the plaintiff in the exercise of ordinary care will not defeat a recovery. Southern Grocery Stores, Inc. v. Herring, 63 Ga. App. 267, 11 S.E.2d 57 (1940).

Even when the plaintiff by the exercise of ordinary care could have avoided the consequences to the plaintiff caused by the defendant's negligence, the plaintiff may still under Georgia law recover if the negligence of the defendant is so gross as to amount to wanton and willful negligence. Stanaland v. Atlantic Coast Line R.R., 192 F.2d 432 (5th Cir. 1951).

It is incumbent upon plaintiff to use degree of care necessary under circumstances to avoid personal injury. Griner v. Groover, 97 Ga. App. 753, 104 S.E.2d 504 (1958).

The question is not whether the plaintiff might on inspection have ascertained the defect but whether the plaintiff 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 the plaintiff's own safety. Scott Dev. Co. v. Munn, 116 Ga. App. 525, 157 S.E.2d 821 (1967).

The test is whether the danger was so obvious and patent that any person injured by going in its vicinity must be held to be so lacking in ordinary care to avoid the known negligence of the defendant as not to be entitled to recover. BLI Constr. Co. v. Debari, 135 Ga. App. 299, 217 S.E.2d 426 (1975).

Failure of the plaintiff to exercise ordinary care for the plaintiff's own safety which will bar the plaintiff from recovery may consist in negligence proximately causing the plaintiff's injury, or negligence in failing to avoid the consequences of the defendant's negligence after it becomes known to the plaintiff, or failure to exercise that degree of care generally which the ordinarily prudent person would show and which, had the plaintiff been in the exercise of such care, would have revealed the defendant's negligence to the plaintiff in time to avoid it even though the plaintiff had no reason to anticipate that such negligence existed. Otherwise, ordinary negligence of the defendant will not preclude recovery, but will diminish the damages. Crim v. Grantham, 139 Ga. App. 680, 229 S.E.2d 150 (1976).

There is a presumption in a medical malpractice case that the physician performed in an ordinarily skillful manner so that the burden is upon the plaintiff to show a want of care or skill; a veteran whose leg was amputated after the veteran failed to comply with a Veterans Administration (VA) treatment plan for the veteran's diabetes and related foot ulcer failed to show that VA personnel breached the standard of care set out in O.C.G.A. § 51-1-27 and that the amputation would have been unnecessary if another treatment plan had been used. Moreover, the VA's evidence plainly established that the veteran's negligence in failing to comply with the veteran's treatment plan exceeded the negligence, if any, by VA personnel, so the veteran could not recover under O.C.G.A. § 51-11-7. Kimbrough v. United States Gov't, F. Supp. 2d (N.D. Ga. Oct. 2, 2008).

One who recklessly tests observed and clearly obvious peril is guilty of lack of ordinary care, and one's own negligence, notwithstanding any accompanying negligence by another, may under the particular facts be deemed the proximate cause of one's injury. In plain and palpable cases, it will be so held as a matter of law; otherwise questions as to such negligence, as well as other questions of negligence by the parties, and as to the proximate cause of the injury, present issues for the jury. Laseter v. Clark, 54 Ga. App. 669, 189 S.E. 265 (1936); Brooks v. Douglas, 154 Ga. App. 54, 267 S.E.2d 495 (1980).

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 one's own safety, cannot hold another liable for damages resulting from an injury thus occasioned, although the same may be in part attributable to the latter's negligence. Culbreath v. Kutz Co., 37 Ga. App. 425, 140 S.E. 419 (1927); Queen v. Patent Scaffolding Co., 46 Ga. App. 364, 167 S.E. 789 (1933); Georgia Power Co. v. Puckett, 50 Ga. App. 720, 179 S.E. 284, rev'd on other grounds, 181 Ga. 386, 182 S.E. 384 (1935); Collett v. Atlanta, B. & C.R.R., 51 Ga. App. 637, 181 S.E. 207 (1935); Lassiter v. Poss, 85 Ga. App. 785, 70 S.E.2d 411 (1952); Beasley v. Elder, 88 Ga. App. 419, 76 S.E.2d 849 (1953).

One who recklessly tests an observed and clearly obvious danger may under the particular facts be held to have failed to exercise that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances and is guilty of contributory negligence, which will be deemed the proximate cause of one's resulting injury and in the absence of willful or wanton misconduct by the defendant will preclude one's recovery. Laseter v. Clark, 54 Ga. App. 669, 189 S.E. 265 (1936); Atlantic Coast Line R.R. v. Street, 116 Ga. App. 465, 157 S.E.2d 793 (1967).

A person cannot undertake to do an obviously dangerous thing, even though directed to do so by another under whom the person is working, without assuming the risks incident thereto and without personally being guilty of such a lack of due care for the person's own safety as to bar the person from recovery if the person is injured in carrying out such directions. Fricks v. Knox Corp., 84 Ga. App. 5, 65 S.E.2d 423 (1951).

Generally, a person is not excused from the consequences of one's own acts in exposing oneself to the danger so apparent that a reasonable person should have seen and recognized the danger. Atlantic Coast Line R.R. v. Street, 116 Ga. App. 465, 157 S.E.2d 793 (1967).

When a person knowingly and voluntarily puts oneself in a place of immediate and obvious peril or exposure to injury, without some reason of necessity or propriety in so doing, and injury happens to the person in consequence of the person being in that place, the person is not allowed to recover, notwithstanding the party may negligently injure the person. In all other cases, the comparative negligence rule applies. Henry Grady Hotel Corp. v. Watts, 119 Ga. App. 251, 167 S.E.2d 205 (1969), overruled on other grounds, Vinson v. Howe Bldrs. Ass'n of Atlanta, 233 Ga. 948, 213 S.E.2d 890 (1975).

Duty resting upon person to avoid consequences of another's negligence after it becomes apparent is not absolute, but is only a duty to exercise ordinary care to prevent the consequences of such negligence. Warren County v. Battle, 48 Ga. App. 240, 172 S.E. 673 (1934); Brooks v. Wofford, 88 Ga. App. 731, 77 S.E.2d 563 (1953).

Duty arises when danger is apparent.

- No duty to exercise ordinary care arises until the negligence of the defendant becomes apparent, or the ordinary person would apprehend the danger's existence. Western Atl. R.R. v. Ferguson, 113 Ga. 708, 39 S.E. 306, 54 L.R.A. 802 (1901); Augusta-Aiken Ry. & Elec. Corp. v. Jones, 15 Ga. App. 93, 82 S.E. 665 (1914).

The duty to avoid negligence does not arise until after the negligence to be avoided has become apparent, or the circumstances are such that an ordinarily prudent person would have reason to apprehend its existence. Brown v. Savannah Elec. & Power Co., 46 Ga. App. 393, 167 S.E. 773 (1932); Brown v. Mayor of Athens, 47 Ga. App. 820, 171 S.E. 730 (1933); Lewis v. Powell, 51 Ga. App. 129, 179 S.E. 865 (1935); Bach v. Bragg Bros. & Blackwell, 54 Ga. App. 574, 186 S.E. 711 (1936); Stanaland v. Atlantic Coast Line R.R., 192 F.2d 432 (5th Cir. 1951); Lawrence v. Hayes, 92 Ga. App. 778, 90 S.E.2d 102 (1955); Petroleum Carrier Corp. v. Jones, 127 Ga. App. 676, 194 S.E.2d 670 (1972); Brooks v. Ralston Purina Co., 155 Ga. App. 164, 270 S.E.2d 347 (1980).

The rule in this section applies only when the defendant's negligence became apparent to the person injured, or when, by the exercise of ordinary care, the defendant could have become aware of it, and the defendant thereafter failed to exercise ordinary and reasonable diligence to avoid the consequences of the defendant's negligence. Taylor v. Morgan, 54 Ga. App. 426, 188 S.E. 44 (1936); Atlantic Coast Line R.R. v. Mitchell, 157 F.2d 880 (5th Cir. 1946).

A person cannot be charged with the duty of using any degree of care and diligence to avoid the negligence of a wrongdoer until one has reason to apprehend the existence of such negligence. Southern Bell Tel. & Tel. Co. v. Bailey, 81 Ga. App. 20, 57 S.E.2d 837 (1950).

When the danger is apparent or is reasonably to be apprehended, the rule requiring the plaintiff to avoid the consequences of the defendant's negligence applies. Fricks v. Knox Corp., 84 Ga. App. 5, 65 S.E.2d 423 (1951); Myers v. Pearce, 102 Ga. App. 235, 115 S.E.2d 842 (1960); Bailey v. Wohl Shoe Co., 128 Ga. App. 372, 196 S.E.2d 677 (1973).

Rule applies to negligence which plaintiff should discover through due care.

- The rule that in order for the plaintiff to recover the plaintiff must have exercised ordinary care to avoid the consequences to the plaintiff caused by the defendant's negligence is not limited to the negligence of the defendant which may have been actually discovered, but extends also to the negligence which might have been discovered by the exercise of ordinary care on the plaintiff's part. Georgia Power Co. v. Maxwell, 52 Ga. App. 430, 183 S.E. 654 (1936); Sumner v. Thomas, 72 Ga. App. 351, 33 S.E.2d 825 (1945); Lanier v. Turner, 73 Ga. App. 749, 38 S.E.2d 55 (1946).

Emergency situation created by defendant may lessen plaintiff's duty of care.

- When one is confronted with a sudden emergency, without sufficient time to determine with certainty the best course to pursue, one is not held to the same accuracy of judgment as would be required of one if one had time for deliberation. Brown v. Savannah Elec. & Power Co., 46 Ga. App. 393, 167 S.E. 773 (1932).

Persons confronted by a dangerous situation, or by an emergency or other circumstances likely to impair judgment and ordinary discretion, are not held to the same quantum of care as they would otherwise. Chitwood v. Stoner, 60 Ga. App. 599, 4 S.E.2d 605 (1939).

A defendant whose negligence has created an emergency cannot always avoid liability therefor on the ground that the plaintiff could have avoided the consequences of such negligence by acting as an ordinarily prudent person would act under ordinary circumstances. Chitwood v. Stoner, 60 Ga. App. 599, 4 S.E.2d 605 (1939).

Although plaintiff will assume risk when danger obvious.

- An emergency created by the negligence of the defendant may well be sufficient to reduce the quantum of care which an ordinary person would exercise under the circumstances, but when the peril is so obvious that even the circumstances it must be apprehended and the risk is then knowingly and voluntarily assumed, the assumption of risk doctrine rather than that of comparative negligence must control. Atlantic Coast Line R.R. v. Street, 116 Ga. App. 465, 157 S.E.2d 793 (1967).

Determining whether risk obvious.

- In considering whether a risk is "obvious," the court must take into account not only the consequences of the act, but the fact as it appeared to the actor at the time. Lassiter v. Poss, 85 Ga. App. 785, 70 S.E.2d 411 (1952).

In the absence of anything to the contrary, every adult is presumed to possess such ordinary intelligence, judgment, and discretion as will enable one to appreciate an obvious danger. Union Carbide Corp. v. Holton, 136 Ga. App. 726, 222 S.E.2d 105 (1975).

At some point, danger and likelihood of self-injury become so obvious that actual knowledge by the plaintiff is unnecessary. Union Carbide Corp. v. Holton, 136 Ga. App. 726, 222 S.E.2d 105 (1975).

Mere knowledge of danger without full appreciation of risk involved is not sufficient to preclude the plaintiff from recovery, even though there may be added to the knowledge of danger a comprehension of some risk. Scott v. Rich's, Inc., 47 Ga. App. 548, 171 S.E. 201 (1933).

Jury may consider emergency nature in assessing plaintiff's actions.

- The fact that a person is confronted with an emergency does not relieve such person from the exercise of ordinary care to avoid personal injury; but the emergency created, if it be such as is likely to impair the judgment, may be considered by the jury in determining what is ordinary care under the circumstances. Chitwood v. Stoner, 60 Ga. App. 599, 4 S.E.2d 605 (1939).

Some negligence before duty arises will not necessarily preclude recovery.

- The mere fact that the plaintiff might have been guilty of ordinary negligence before the duty arose to discover and avoid the defendant's negligence would not in and of itself preclude a recovery by the plaintiff. Willis v. Jones, 89 Ga. App. 824, 81 S.E.2d 517 (1954).

The law is that ordinary negligence of the plaintiff will not bar recovery when it precedes any duty on the plaintiff's part to discover and avoid the negligence of the defendant. Underwood v. Atlanta & W. Point R.R., 105 Ga. App. 340, 124 S.E.2d 758, aff'd in part and rev'd in part, 218 Ga. 193, 126 S.E.2d 785 (1962).

May authorize jury to reduce damages based on fault attributable to injured.

- Failure to exercise ordinary care on the part of the person injured before the negligence complained of is apparent or should have been reasonably apprehended will not preclude a recovery, but will authorize the jury to diminish the damages in proportion to the fault attributable to the person injured. Warren County v. Battle, 48 Ga. App. 240, 172 S.E. 673 (1934).

If negligence of parties is equal, the plaintiff cannot recover on the plaintiff's main petition nor could the defendant prevail on the cross-action. Maner v. Dykes, 55 Ga. App. 436, 190 S.E. 189 (1937).

Knowledge of a puddle of water surrounded by ice, coupled with knowledge of the generally prevailing weather conditions, is knowledge of a probable danger of encountering additional ice under the surface of the water and a danger of slipping when walking thereon. Bloch v. Herman's Sporting Goods, Inc., 208 Ga. App. 280, 430 S.E.2d 86 (1993).

4. Assumption of Risk and Last Clear Chance

Assumption of risk defense.

- Georgia courts have treated the traditional torts principle of assumption of risk not as a separate defense barring recovery, but as an instance of the plaintiff's lack of ordinary care. To establish the defense of assumption or risk, it must appear that the plaintiff not only had knowledge of the condition or defect complained of, but also that the plaintiff knew or should have known of the danger involved in encountering the condition or continuing the course of action which resulted in the injury. Mitchell v. Young Ref. Corp., 517 F.2d 1036 (5th Cir. 1975); Brandvain v. Ridgeview Inst., Inc., 188 Ga. App. 106, 372 S.E.2d 265 (1988), aff'd, 259 Ga. 376, 382 F.2d 597 (1989).

Assumption of risk means that the plaintiff, in advance, has given the plaintiff's consent to relieve the defendant of an obligation of conduct toward the plaintiff, and to take the plaintiff's chances of injury from a known risk arising from what the defendant is to do or leave undone. Osburn v. Pilgrim, 246 Ga. 688, 273 S.E.2d 118 (1980).

Willful and wanton conduct.

- Assumption of the risk is not a valid defense and is not a bar in claims arising from willful and wanton conduct. McEachern v. Muldovan, 234 Ga. App. 152, 505 S.E.2d 495 (1998).

Failure to tell doctor of allergic reaction to drugs was not an indication that the patient fully appreciated all risk of injury that could flow from such lack of disclosure so as to warrant a charge on assumption of risk. Haynes v. Hoffman, 164 Ga. App. 236, 296 S.E.2d 216 (1982), overruled on other grounds, Smith v. Finch, 285 Ga. 709, 681 S.E.2d 147 (2009).

Assumption of risk that horse would become "spooked."

- When the appellant testified that the procedure being used to catch a calf when the appellant's injury occurred was "an acceptable practice," that horse the appellant was riding was trained for purpose of moving cows, that the appellant had used the horse for that purpose for approximately ten years, and after the appellant further testified that the appellant knew the appellant's father was on foot in an attempt to assist the appellant in catching the calf, and that the appellant knew a horse may become "spooked" when seeing someone through the corner of its eye, the appellant assumed the risk that the appellant's horse would likely become "spooked" when approached suddenly by the appellee and was not entitled to recover for injuries sustained when thrown from the horse. Hollingsworth v. Hollingsworth, 165 Ga. App. 319, 301 S.E.2d 56 (1983).

Elements of last clear chance doctrine.

- The plaintiff must show as a matter of law each of the elements of the doctrine of last clear chance in order to have it apply. The first essential element is that the plaintiff, by the plaintiff's own negligence, must have put oneself in a position of peril from which one could not extricate oneself (but the defendant presumably could extricate the plaintiff). The second essential element is that the defendant must have knowledge and appreciation of the injured person's peril in time to avoid the injury. Shuman v. Mashburn, 137 Ga. App. 231, 223 S.E.2d 268 (1976).

The last clear chance doctrine can be invoked only when the defendant knows of the plaintiff's perilous situation, and realizes, or has reason to realize, the plaintiff's helpless condition. This doctrine contains two elements: the plaintiff must have put oneself in a position of peril from which the plaintiff could not extricate oneself, and the defendant must have knowledge and appreciation of the injured party's peril in time to avoid the injury. Smith v. Mobley, 185 Ga. App. 462, 364 S.E.2d 597 (1987), cert. denied, 185 Ga. App. 910, 364 S.E.2d 597 (1988).

Defendant liable if defendant had last clear chance to avoid injury.

- If both the plaintiff and defendant are negligent, the latter can be found solely liable for all the damage if the defendant had a last clear chance to avoid the injury and did not exercise ordinary care. Southern Ry. v. Brunswick Pulp & Paper Co., 376 F. Supp. 96 (S.D. Ga. 1974).

Scope and function of doctrine of last clear chance is limited; it has no function to perform unless the injured person was personally chargeable with negligence which, apart from the doctrine, would preclude recovery. In guest cases wherein the negligence of the host is not imputable under the theory of joint adventure or some other theory of law, and when the guest plaintiff personally is guilty of no negligence, the mere fact that the host was grossly negligent cannot operate to invoke the last clear chance doctrine, the injured person personally not being chargeable with contributing to the plaintiff's injuries. Georgia Power Co. v. Blum, 80 Ga. App. 618, 57 S.E.2d 18 (1949).

The doctrine of last clear chance is applicable only when the defendant's failure to avoid the consequences was the last negligent act, and hence the proximate cause of the injury, or conversely, that the doctrine is not applicable if the plaintiff's own act was the final negligence before the accident. Shuman v. Mashburn, 137 Ga. App. 231, 223 S.E.2d 268 (1976).

Last clear chance doctrine cannot be applied when the plaintiff is guilty of no negligence. Atlantic Coast Line R.R. v. Coxwell, 93 Ga. App. 159, 91 S.E.2d 135 (1955).

Doctrine inapplicable when plaintiff unaware of defendant's negligence.

- The doctrine of last clear chance is inapplicable when the alleged negligence of the defendant was its failure to control the misuse of its amusement ride, and this negligence was not known to the plaintiff, who was injured in a fall from the ride. Fraley ex rel. Fraley v. Lake Winnepesaukah, Inc., 631 F. Supp. 160 (N.D. Ga. 1986).

Doctrine inapplicable to patient who could not leave hospital.

- When a patient was being held by a hospital pursuant to a certificate signed by a physician and could not leave the hospital, the hospital and physician could not legally be relieved of their duty to the patient, and therefore assumption of the risk was not applicable. Brandvain v. Ridgeview Inst., Inc., 188 Ga. App. 106, 372 S.E.2d 265 (1988), aff'd, 259 Ga. 376, 382 S.E.2d 597 (1989).

Gasoline tanker driver did not voluntarily assume risk.

- Summary judgment was improperly granted to the corporation that owned the gas station and the gas station manager because the tanker driver, the corporation, and the manager all knew that the placement of the tanks at the gas station presented a potential hazard because, while sticking the tanks, it put tanker drivers into the flow of traffic pulling in and out of the parking area where the tanks were located; the tanker driver had voiced displeasure that the corporation's policy of sticking the tanks subjected the tanker driver to risk; and the tanker driver did not voluntarily assume the risk of the traffic flow as the tanker driver was presented with the untenable choice of risking the traffic flow or risk losing the tanker driver's job. Travis v. Quiktrip Corporation, 339 Ga. App. 551, 794 S.E.2d 195 (2016).

5. Pleading and Practice

Plaintiff not obliged to plead due care or lack of contributory negligence.

- When a petition alleges negligence against the defendant as the proximate cause of an alleged injury, the petition need not negate contributory negligence on the part of the plaintiff. Southern Stages, Inc. v. Clements, 71 Ga. App. 169, 30 S.E.2d 429 (1944).

In a suit for a personal injury brought by a person other than an employee of a railroad company, it has not been held necessary in this state for the plaintiff to allege negatively that the plaintiff did not personally cause the injury by the plaintiff's own negligence, or why the plaintiff could not by the use of ordinary care have avoided the alleged injury. Smith v. Swann, 73 Ga. App. 144, 35 S.E.2d 787 (1945).

Plaintiff is not obliged to allege facts showing that the plaintiff exercised due care for the plaintiff's own safety, or that the injury was not the result of the plaintiff's own negligence. Porter v. Southern Ry., 73 Ga. App. 718, 37 S.E.2d 831 (1946); McDowall Transp., Inc. v. Gault, 80 Ga. App. 445, 56 S.E.2d 161 (1949).

If plaintiff pleads lack of contributory negligence, denial of such allegations will raise issue of such negligence. Blanton v. Doughty, 107 Ga. App. 91, 129 S.E.2d 376 (1962).

No cause of action stated when petitions showed plaintiff's failure to avoid injury.

- When the petitions affirmatively showed that by the exercise of ordinary care the plaintiffs' deceased child could have avoided the consequences of the alleged negligence of the defendant after it became apparent to the child, or in the exercise of ordinary care should have become apparent to the child, the petitions failed to state causes of action. Atlanta Gas Light Co. v. Brown, 94 Ga. App. 351, 94 S.E.2d 612 (1956).

When the petition affirmatively revealed that the deceased failed to exercise ordinary care to avoid the consequence of the defendant's negligence after the same could have been discovered by the exercise of ordinary care upon the deceased's part, it set forth no cause of action. Brown v. Atlanta Gas Light Co., 96 Ga. App. 771, 101 S.E.2d 603 (1957).

Unless allegations of petition affirmatively show that the plaintiff did not exercise ordinary care, then the petition is good against a general demurrer (now motion to dismiss). Bray v. Barrett, 84 Ga. App. 114, 65 S.E.2d 612 (1951).

Defendant may raise contributory negligence in responsive pleadings.

- Under the defendant's general denial of all allegations in the plaintiff's petition, it was permissible for the defendant to allege the complete defense that if the plaintiff did not exercise ordinary care to avoid the consequences to the plaintiff caused by the defendant's negligence, the plaintiff would not recover; and, thus, if there was any evidence in the case to support this defense, it was an issue raised both by the pleadings and the evidence. Donahoo v. Goldin, 61 Ga. App. 841, 7 S.E.2d 820 (1940).

Consideration of evidence in conjunction with motion to dismiss.

- General allegations that a person could not have avoided the consequences of another's negligence by the exercise of ordinary care after it was or should have been discovered must yield, on demurrer (now motion to dismiss), to the particular facts shown when inferences from the facts are necessarily to be drawn contradictory of the conclusions. Sheppard v. Georgia Power Co., 66 Ga. App. 620, 18 S.E.2d 686 (1942).

Respective burdens of proof.

- A plea of contributory negligence wherein the defendant admits negligence on the defendant's part, but contends that the negligence of the defendant was not greater than that of the plaintiffs, usually, under the law prevailing in this state, shifts the burden from the plaintiffs to the defendant to prove such affirmative defenses; but the absence of such a plea does not eliminate the burden which rests upon the plaintiffs to prove by a preponderance of the testimony that the negligence of the defendant was the sole proximate cause of the homicide, without any mixture of negligence on the part of the deceased or that even if the deceased was negligent, the plaintiffs' negligence was less than that of the defendant. Huell v. Southeastern Stages, Inc., 78 Ga. App. 311, 50 S.E.2d 745 (1948).

Burden of proof in comparative negligence defense.

- While comparative negligence is available as an affirmative defense, the burden of proving it remains with the party relying upon it and not upon the party making the original negligence claim to disprove it. Glenridge Unit Owners Ass'n v. Felton, 183 Ga. App. 858, 360 S.E.2d 418 (1987).

6. Jury Instructions

Charge of section.

- It is proper to give in charge the principle contained in this section, on request, although the plaintiff in the plaintiff's pleadings sought to recover full damages for the injuries alleged to have been sustained. Hill v. Callahan, 82 Ga. 109, 8 S.E. 730 (1889); Hilton & Dodge Lumber Co. v. Ingram, 135 Ga. 696, 70 S.E. 234 (1911).

It is error for trial court to instruct jury on comparative negligence when there is no evidence of such negligence on the part of the plaintiff, even though the issue of negligence may have been raised in the defendant's pleadings. Gardner v. Morrison, 427 F.2d 654 (5th Cir. 1970).

Jury instruction when no evidence of plaintiff's negligence.

- It was error to charge the jury that there could be no recovery if the plaintiffs were as negligent as the defendants when there was no evidence authorizing a finding that the plaintiffs' deceased guest was in any way negligent. Granger v. National Convoy & Trucking Co., 62 Ga. 294, 7 S.E.2d 915 (1940).

When there is no evidence to show that one party could in fact have discovered and avoided the negligence of the other, an instruction on this section is inappropriate and should not be given. Elsberry v. Lewis, 140 Ga. App. 324, 231 S.E.2d 789 (1976); Moore v. Price, 158 Ga. App. 566, 281 S.E.2d 269 (1981).

Not error to fail to charge on comparative negligence when no evidence of such.

- The trial court does not err in failing to charge the principle of law contained in this section since there is no evidence from which it could be inferred that the negligence of the defendants was apparent to the plaintiff, or should have been reasonably apprehended by the plaintiff, until it was too late to avoid such negligence. Lawrence v. Hayes, 92 Ga. App. 778, 90 S.E.2d 102 (1955).

It is not error to fail to charge the jury on comparative negligence or plaintiff's failure to avoid the consequences of the defendant's negligence when these issues are not supported by any evidence. Lee v. Pierce, 144 Ga. App. 755, 242 S.E.2d 294 (1978).

Comparative negligence not pled as defense.

- When the doctrine of comparative negligence is not raised by the petition, it is not error, in the absence of a timely written request, for the court to fail to instruct the jury on the doctrine of comparative negligence. Georgia Power Co. v. Holmes, 175 Ga. 487, 165 S.E. 284 (1932).

When the plaintiff in the petition seeks to recover the full amount of damage from alleged negligence by the defendant and the defendant does not plead the defense of comparative negligence, it is not error, in the absence of timely written request, for the court to fail to instruct the jury on the doctrine of comparative negligence, even though such a charge might be proper under the evidence. McCrackin v. McKinney, 52 Ga. App. 519, 183 S.E. 831 (1936).

When the issue of comparative negligence is not raised by the pleadings, and when further there is no written request for the instruction, failure to charge the rule of comparative negligence is not ground for a new trial even though it might have been authorized under the evidence. City of Commerce v. Bradford, 94 Ga. App. 284, 94 S.E.2d 160 (1956).

When the issue of avoidance or of comparative negligence is not raised by the defendant's answer or plea there is no error in failing to charge on these items, absent a timely written request. Davis v. Hammock, 123 Ga. App. 33, 179 S.E.2d 283 (1970).

Charge not requested.

- Failure to charge when not requested is not ground for a new trial. Southern Cotton Oil Co. v. Skipper, 125 Ga. 368, 54 S.E. 110 (1906).

Not error to fail to charge precise language when principle made clear.

- It was not error for the court, in giving in charge this rule as contained in the section, to fail to give in charge in connection therewith the language immediately following, contained in the same section, that "in other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained," when the court elsewhere in the charge instructed the jury that if the negligence of the defendants exceeded the negligence of the plaintiff, the plaintiff could recover, but that the damages recoverable must be diminished in proportion to the amount of negligence attributable to the plaintiff. Gossett v. Kraft Phenix Cheese Corp., 58 Ga. App. 265, 198 S.E. 298 (1938).

Not error to omit specific charge on avoidance when principles given elsewhere in charge.

- It was not error for the court, in charging the law of comparative negligence, to fail in connection therewith to charge the jury that if the plaintiff failed to exercise ordinary care and this was the cause of the injury, or if the plaintiff by the exercise of ordinary care could have avoided the consequences of the defendant's negligence, there could be no recovery, since the court elsewhere gives these principles of law in charge. Southern Grocery Stores, Inc. v. Cain, 50 Ga. App. 629, 179 S.E. 128 (1935).

Judge must charge comparative negligence principles when pleadings and facts raise issue.

- When the pleadings and the evidence make an issue as to the plaintiff's diligence and the defendant's negligence, it is error for the court to omit an instruction to the jury embodying the principle expressed in the code section, even in the absence of any request to do so. Georgia Ry. & Power Co. v. McElroy, 36 Ga. App. 143, 136 S.E. 85 (1926).

When the pleadings and the evidence raise the issue of whether the plaintiff by the exercise of ordinary care could have avoided the consequences of the defendant's negligence, it is the duty of the trial judge to give this principle in a charge to the jury without request and, when there is a general denial by the defendant of a paragraph of the plaintiff's petition alleging that the plaintiff was in the exercise of ordinary care or when such defense is expressly pled, and the evidence of the plaintiff or the defendant or both together reasonably raised such issue, it is error requiring the grant of a new trial for the trial judge to fail to give this principle in a charge to the jury. Black & White Cab Co. v. Smith, 48 Ga. App. 566, 173 S.E. 206 (1934).

When the law of contributory negligence was injected into the case by both the pleadings and the evidence, it was error for the court to fail, even without request, to charge the principle of law embodied in this section. Pollard v. Watkins, 51 Ga. App. 762, 181 S.E. 798 (1935).

It is quite proper when the facts authorize it for a court to instruct the jury that the plaintiff cannot recover if the plaintiff's negligence is equal to or greater than the defendant's negligence. Yellow Cab Co. v. Adams, 71 Ga. App. 404, 31 S.E.2d 195 (1944).

When evidence would have authorized a finding that the plaintiff could have avoided the alleged negligence of the railroad company by the exercise of ordinary care, it was error for the court to refuse to give a charge on request that if the plaintiff, by the exercise of ordinary care, could have avoided the consequence to the plaintiff caused by the defendant's negligence, the plaintiff would not be entitled to recover. Atlantic Coast Line R.R. v. Green, 84 Ga. App. 674, 67 S.E.2d 184 (1951).

It is error, even in the absence of request, to omit to charge on the law of comparative negligence only if both the pleadings and proof in the case present an issue was to whether the plaintiff's recovery should be reduced according to the rule embodied in this section. City of Commerce v. Bradford, 94 Ga. App. 284, 94 S.E.2d 160 (1956).

When there is evidence from which the jury could infer that the negligence of the defendant in turning left across an intersection in front of the plaintiff was apparent to the plaintiff, or should have been reasonably apprehended by the plaintiff in approaching the intersection, the court should give a written request that even though the defendant may be negligent as charged, the plaintiff cannot recover as a matter of law if the plaintiff could have avoided the consequences thereof by the exercise of ordinary care and diligence. Currey v. Claxton, 123 Ga. App. 681, 182 S.E.2d 136 (1971).

When the pleadings and the evidence make an issue as to the plaintiff's diligence and the defendant's negligence, it was error for the court to omit an instruction to the jury embodying the principle expressed in this section, even in the absence of any request to do so. Lee v. Pierce, 144 Ga. App. 755, 242 S.E.2d 294 (1978).

It is reversible error to refuse a request on the doctrine of avoidance when the issue is raised by the evidence and there is a timely request for the charge. Kroger Co. v. Roadrunner Transp., Inc., 634 F.2d 228 (5th Cir. 1981).

It is quite proper when the facts authorize it for a court to instruct the jury that the plaintiff cannot recover if the plaintiff, by the exercise of ordinary care, could have avoided the consequence caused by the defendant's negligence. Brown v. Williams, 191 Ga. App. 147, 381 S.E.2d 308 (1989).

In a medical malpractice action, when part of the defense was that the injuries for which the plaintiff sought recovery were attributable to the plaintiff's negligence in failing to submit to recommended treatment, a charge on the contributory-negligence rule was appropriate and, as there was evidence that the injuries were also the product of the defendant's negligence, a charge on comparative-negligence and its "equal to or greater than" bar was also warranted. Whelan v. Moone, 242 Ga. App. 795, 531 S.E.2d 727 (2000).

Rule as to contributory negligence and diminution of damages confused.

- An instruction to the jury, in which the rule expressed in the section, which precludes a recovery when the plaintiff has failed to exercise ordinary care, is confused with the rule as to comparative negligence and diminution or apportionment of damages, is erroneous. Brown v. Meikleham, 34 Ga. App. 207, 128 S.E. 918 (1925).

It is error to charge "avoidance of consequences" rule in immediate connection with "apportionment of damages" rule in such manner as to qualify the former by the latter, and without making the proper explanation as to the class of cases to which this latter charge is applicable. Underwood v. Atlanta & W. Point R.R., 105 Ga. App. 340, 124 S.E.2d 758, aff'd in part and rev'd in part, 218 Ga. 193, 126 S.E.2d 785 (1962).

Cases to which the apportionment rule is applicable are cases when, by ordinary care, the plaintiff could not have avoided the consequences of the defendant's negligence. In order to avoid confusion in the application of these complex rules, the court should charge them to the jury separately. Underwood v. Atlanta & W. Point R.R., 105 Ga. App. 340, 124 S.E.2d 758, aff'd in part and rev'd in part, 218 Ga. 193, 126 S.E.2d 785 (1962).

When evidence authorized jury to find both parties negligent, it was not error for court to charge principle of apportionment of damages, notwithstanding that the defensive pleadings failed to allege the principle of what is generally known in this state as contributory negligence. Huell v. Southeastern Stages, Inc., 78 Ga. App. 311, 50 S.E.2d 745 (1948).

Failure to charge section not error as to plaintiff.

- While a failure to charge the defense stated in this section may constitute reversible error, a failure so to charge could not be accounted as harmful error as against the plaintiff against whom such defense in favor of the defendant is directed. Donaldson v. Central of Ga. Ry., 43 Ga. App. 480, 159 S.E. 738 (1931).

Evidence clearly shows plaintiff not guilty of negligence.

- When the evidence clearly showed that the plaintiff was not guilty of negligence, and since the court elsewhere in the charge had set out in contentions of the parties, the charge on the exercise of ordinary care by the plaintiff had the effect of stressing the contention of the defendant that the injuries were sustained because of the negligence of the plaintiff, and was grounds for a new trial. Groover v. Cudahy Packing Co., 61 Ga. App. 707, 7 S.E.2d 287 (1940).

Slight evidence of comparative negligence authorizes jury charge.

- The amount of evidence which makes a comparative negligence charge appropriate, and thus renders it error to refuse a timely request, need not be great; it is sufficient if there is slight evidence from which inferences of negligence can be drawn by the jury. Davis v. Hammock, 123 Ga. App. 33, 179 S.E.2d 283 (1970).

Error to charge plaintiff's recovery barred if care not exercised before duty to discover defendant's negligence arose.

- The court erred in charging the jury that under the comparative negligence rule and doctrine the plaintiff would be barred from recovery if the plaintiff was guilty of a failure to exercise ordinary care before the plaintiff's duty to discover and avoid the negligence of the defendant arose. Willis v. Jones, 89 Ga. App. 824, 81 S.E.2d 517 (1954).

Charge on avoidance doctrine may omit reference doctrine to when plaintiff's duty arose.

- A charge on the avoidance doctrine in the language of this section is a complete and correct principle of law, though it does not specifically instruct the jury that the plaintiff's duty to use ordinary care to avoid the consequence of the defendant's negligence does not arise until that negligence is apparent or the circumstances are such that a reasonably prudent person would apprehend the defendant's negligence. Mitchell v. Gay, 111 Ga. App. 867, 143 S.E.2d 568 (1965).

It is not incumbent on court, absent timely written request, to charge that burden of proving contributory negligence rested upon the defendant since contributory negligence by the plaintiff may appear as well from evidence of the plaintiff as that of the defendant, and since it is only when the defendant's negligence has been made to appear by proof that the burden shifts to the defendant to show the plaintiff's negligence, if it relies upon this defense. Whitman v. Burden, 155 Ga. App. 67, 270 S.E.2d 235 (1980).

Not harmful error to fail to charge on burden of proof.

- Trial court did not commit harmful error under O.C.G.A. § 5-5-24(c) in failing to charge the jury that an engineering firm had the burden of proof as to its affirmative defenses of contributory and comparative negligence; any error did not result in a gross injustice, such as to raise a question as to whether a developer was deprived of a fair trial. Prime Retail Dev., Inc. v. Marbury Eng'g Co., 270 Ga. App. 548, 608 S.E.2d 534 (2004).

Better practice is to give distinctness to this section by direct charge on it. Chitwood v. Stoner, 60 Ga. App. 599, 4 S.E.2d 605 (1939).

A charge embodying, substantially, the language of the section was not erroneous as impressing the jury that the plaintiff was under a duty to avoid the consequences of the defendant's negligence, though such negligence was not known or apparent to the plaintiff, or was reasonably to be apprehended by the plaintiff, and that if the plaintiff did not avoid it the plaintiff could not recover. Howard v. Georgia Ry. & Power Co., 35 Ga. App. 273, 133 S.E. 57 (1926); Central of Ga. Ry. v. Barnett, 35 Ga. App. 528, 134 S.E. 126 (1926).

To charge express language of this section is not expression that defendant was negligent. Olliff v. Howard, 33 Ga. App. 778, 127 S.E. 821 (1925).

It is not error to charge jury that want of ordinary care by the plaintiff would bar recovery. Hexter v. Burgess, 52 Ga. App. 819, 184 S.E. 769 (1936).

Charge that the plaintiff could recover when the plaintiff's negligence exceeded the defendant's erroneous.

- Charge that the plaintiff could recover if both the plaintiff and the defendant were negligent, although the plaintiff's negligence exceeded that of the defendant, was erroneous. Georgia Power Co. v. Maxwell, 52 Ga. App. 430, 183 S.E. 654 (1936).

Charge that the plaintiff must be free from negligence improper.

- It is improper to instruct the jury that the plaintiff must have been free from negligence before it can recover. Lime-Cola Bottling Co. v. Atlanta & W. Point R.R., 34 Ga. App. 103, 128 S.E. 226 (1925).

Failure to instruct on comparative negligence without request not reversible error.

- Trial court's failure to instruct the jury without request on the doctrine of comparative negligence did not constitute a gross miscarriage of justice requiring a new trial. King v. Communications, Inc., 166 Ga. App. 35, 303 S.E.2d 143 (1983).

"Erroneous" charge harmless when movant awarded damages.

- When the plaintiff enumerates as error the giving of a jury charge on the avoidance doctrine, but the jury had returned a verdict which awarded damages to the plaintiff, it is clear that it did not apply this doctrine, and even if erroneous, the giving of the charge was harmless. Wood v. Food Giant, Inc., 183 Ga. App. 604, 359 S.E.2d 410, cert. denied, 183 Ga. App. 907, 359 S.E.2d 410 (1987).

Jury charge proper.

- In a slip and fall case, the trial court did not err in providing the pattern instructions on avoidance of consequences, superior knowledge, equal negligence, and comparative negligence. Walker v. Bruno's, Inc., 228 Ga. App. 589, 492 S.E.2d 336 (1997).

7. Jury Questions

Contributory comparative negligence presents jury question.

- Questions as to diligence and negligence, including contributory negligence, and what negligence constitutes the proximate cause of the injury complained of, are questions peculiarly for the jury, except when the solution of the question appears to be palpably clear, plain, and indisputable. Southern Cotton-Oil Co. v. Gladman, 1 Ga. App. 259, 58 S.E. 249 (1907); Columbus Power Co. v. Puckett, 24 Ga. App. 390, 100 S.E. 800 (1919); Brown v. Savannah Elec. & Power Co., 46 Ga. App. 393, 167 S.E. 773 (1932); Queen v. Patent Scaffolding Co., 46 Ga. App. 364, 167 S.E. 789 (1953); Eubanks v. Mullis, 51 Ga. App. 728, 181 S.E. 604 (1935); Minnick v. Jackson, 64 Ga. App. 554, 13 S.E.2d 891 (1941); Lanier v. Turner, 73 Ga. App. 749, 38 S.E.2d 55 (1946); Atlantic Coast Line R.R. v. Coxwell, 93 Ga. App. 159, 91 S.E.2d 135 (1955); Blanton v. Doughty, 107 Ga. App. 91, 129 S.E.2d 376 (1962); United Car & Truck Leasing, Inc. v. Roberts, 150 Ga. App. 369, 257 S.E.2d 905 (1979); Myers v. Boleman, 151 Ga. App. 506, 260 S.E.2d 359 (1979).

Failure to read warning was jury question.

- Jury question was raised as to whether an injured party would have seen, and could have read, a warning of the dangers in improperly filling a container with gasoline if the party had exercised ordinary care for the party's own safety; the injured party was not contributorily negligent as a matter of law as the party did not drench oneself with gasoline and as it was not shown that the party filled containers with gasoline routinely, had been to the gasoline station before, or was aware of the dangers involved in filling such containers without putting the container on the ground. Camden Oil Co. v. Jackson, 270 Ga. App. 837, 609 S.E.2d 356 (2004).

Court may decline negligence issues if evidence clear.

- Questions of diligence or negligence are peculiarly matters for the jury, and a court ought not to take the place of the jury in solving them. Brown v. Savannah Elec. & Power Co., 46 Ga. App. 393, 167 S.E. 773 (1932).

When, in an action for personal injury, the case turns upon the question whether the party injured could, by the exercise of ordinary care, have avoided the injury, and the evidence does not show such conduct on the party's part as to amount to negligence per se, the question as to the exercise of ordinary care is for the jury. Brown v. Savannah Elec. & Power Co., 46 Ga. App. 393, 167 S.E. 773 (1932); Eubanks v. Mullis, 51 Ga. App. 728, 181 S.E. 604 (1935).

Even when from the plaintiff's testimony it is a doubtful question whether the plaintiff could or could not have avoided the injury to the plaiintiff by ordinary care, the case should be submitted to a jury, and the granting of a nonsuit is improper. Brown v. Savannah Elec. & Power Co., 46 Ga. App. 393, 167 S.E. 773 (1932).

It is still in most cases a question of fact whether, taking into account all the circumstances, including the knowledge and appreciation as well as every other material condition, the plaintiff is guilty of such negligence as to preclude recovery. Scott v. Rich's, Inc., 47 Ga. App. 548, 171 S.E. 201 (1933).

The question as to whether or not a plaintiff under a given set of circumstances could or could not have avoided the consequences of a defendant's negligence is ordinarily a question for the jury. Such a question will not be solved on demurrer (now motion to dismiss), except in plain and indisputable cases. Lewis v. Powell, 51 Ga. App. 129, 179 S.E. 865 (1935).

If there is any evidence that the plaintiff has not exercised due care under the circumstances, and the pleadings authorize it, the issue should be submitted to the jury. Dixon v. Merry Bros. Brick & Tile Co., 56 Ga. App. 626, 193 S.E. 599 (1937).

The question of whose negligence and what negligence is the proximate cause of an injury, and the degree of negligence as between the parties, is generally a jury question, under the whole evidence, to be determined by the jury under proper instructions from the court. Southern Stages, Inc. v. Clements, 71 Ga. App. 169, 30 S.E.2d 429 (1944).

When the petition did not show facts which demanded the finding that the plaintiff's conduct was such as to make it impossible for the defendant to avoid injuring the plaintiff by the exercise of ordinary care, the questions involved should be submitted to a jury. Ivey v. Symms, 87 Ga. App. 211, 73 S.E.2d 333 (1952).

Questions as to diligence and negligence, including concurrent negligence, are for the jury when the minds of reasonable men might disagree as to whether or not the negligence charged is a concurring proximate cause of the injury. Atlantic Coast Line R.R. v. Coxwell, 93 Ga. App. 159, 91 S.E.2d 135 (1955).

Whether the plaintiff failed to show care for the plaintiff's own safety is ordinarily a jury question. Powell v. Barker, 96 Ga. App. 592, 101 S.E.2d 113 (1957).

The question of comparative negligence on the part of the parties is exclusively a jury question and not a question that may be determined by the court as a matter of law. Southern Ry. v. Haynes, 293 F.2d 291 (5th Cir. 1961).

Jury must decide whether by the exercise of ordinary care the plaintiff could have avoided the consequences of defendant's negligence. Underwood v. Atlanta & W. Point R.R., 105 Ga. App. 340, 124 S.E.2d 758, aff'd in part and rev'd in part, 218 Ga. 193, 126 S.E.2d 785 (1962).

Whether the plaintiff has used ordinary care is a jury question except in clear and palpable cases, to be decided from their observation, their common sense, and their common knowledge and experience. Henry Grady Hotel Corp. v. Watts, 119 Ga. App. 251, 167 S.E.2d 205 (1969), overruled on other grounds, Vinson v. Howe Bldrs. Ass'n of Atlanta, 233 Ga. 948, 213 S.E.2d 890 (1975).

As a general proposition, issues of negligence, contributory negligence, and lack of ordinary care for one's own safety are not susceptible of summary adjudication either for or against the claimant, but should be resolved by trial in the ordinary manner. Manheim Servs. Corp. v. Connell, 153 Ga. App. 533, 265 S.E.2d 862 (1980).

Whether a plaintiff failed to exercise ordinary care to avoid the negligence of the defendant as required by this section is usually a jury question. Johnson v. UPS, 616 F.2d 161 (5th Cir. 1980).

The court of appeals erred in holding that only the factfinder could determine the plaintiff's negligence, when the undisputed evidence showed that the injured plaintiff knew the walkway to the plaintiff's basement was slippery due to sewage overflow, but attempted to traverse the walkway in spite of the plaintiff's knowledge of such condition (reversing Girone v. City of Winder, 215 Ga. App. 822, 452 S.E.2d 794 (1994)). City of Winder v. Girone, 265 Ga. 723, 462 S.E.2d 704 (1995).

While the issue of the plaintiff's exercise of due diligence for the plaintiff's own safety ordinarily is reserved for the jury, it may be summarily adjudicated when the plaintiff's knowledge of the risk is clear and palpable. Lowery's Tavern, Inc. v. Dudukovich, 234 Ga. App. 687, 507 S.E.2d 851 (1998).

Questions of negligence, proximate cause, foreseeability, and intervening causation are all questions of fact under Georgia law. Morgan v. Westinghouse Elec. Corp., 579 F. Supp. 867 (N.D. Ga. 1984), aff'd, 752 F.2d 648 (11th Cir. 1985).

Sole proximate cause was jury question.

- Jury question was raised as to whether an injured party's failure to exercise care for the party's safety in improperly filling a container with gasoline was the sole proximate cause of the injuries to defeat a negligence per se claim based on an oil company's violations of the Georgia Fire Safety Commission; the injured party did not so plainly and palpably fail to exercise ordinary care for the party's own safety as to require summary judgment for the oil company. Camden Oil Co. v. Jackson, 270 Ga. App. 837, 609 S.E.2d 356 (2004).

Whether plaintiff failed to avoid consequences not issue in law.

- Ordinarily the facts upon which the plaintiff is barred from recovery - that the plaintiff failed to avoid the consequences of the defendant's negligence which the plaintiff reasonably could have apprehended, or that the plaintiff voluntarily encountered a known danger - cannot be decided by the court as issues of law. Chotas v. J.P. Allen & Co., 113 Ga. App. 731, 149 S.E.2d 527 (1966).

Court may decide negligence issues if evidence clear.

- Ordinarily, the question of negligence is one for the jury, but when the allegations of the petition clearly disclose that the plaintiff by the exercise of ordinary care could have avoided the consequences of the defendant's negligence, the petition is subject to general demurrer (now motion to dismiss). Sheppard v. Georgia Power Co., 66 Ga. App. 620, 18 S.E.2d 686 (1942).

The petition will not be dismissed on demurrer (now motion to dismiss) unless in construing the petition most strongly against the plaintiff it should appear that the plaintiff could, by the exercise of ordinary care, have avoided the consequences of the defendant's negligence. Southern Stages, Inc. v. Clements, 71 Ga. App. 169, 30 S.E.2d 429 (1944).

Although generally questions of ordinary care are for the jury to determine, when the defective conditions are obvious under ordinary circumstances, if ordinary care is employed in using the senses and when such conditions are so obviously dangerous that no one of ordinary prudence while in the exercise of ordinary care would use the floor, the courts will resolve the issue against a plaintiff on demurrer (now motion to dismiss). Macon Academy Music Co. v. Carter, 78 Ga. App. 37, 50 S.E.2d 626 (1948).

While questions of negligence, comparative negligence, and proximate cause are ordinarily questions for a jury, if a petition shows on the petition's face that the plaintiff's own negligence proximately caused the plaintiff's injuries, the case will be resolved in favor of the defendant on demurrer (now motion to dismiss). Anderson v. Southern Ry., 88 Ga. App. 195, 76 S.E.2d 528 (1953).

A trial court can conclude as a matter of law that the facts do or do not show negligence on the part of the defendant or the plaintiff only when the evidence is plain, palpable, and indisputable. Manheim Servs. Corp. v. Connell, 153 Ga. App. 533, 265 S.E.2d 862 (1980).

Contributory negligence charge not required.

- As there was no evidence that the injured dock worker was negligent for misinterpreting the employer's crane operator's signals, a charge on contributory negligence was not required. Georgia Ports Auth. v. Hutchinson, 209 Ga. App. 726, 434 S.E.2d 791 (1993).

Review of written environmental report amounted to negligence is jury question.

- Trial court properly instructed a jury on contributory and comparative negligence as to whether a developer's closing on a property without examining a written environmental report amounted to negligence as that issue was a jury question. Prime Retail Dev., Inc. v. Marbury Eng'g Co., 270 Ga. App. 548, 608 S.E.2d 534 (2004).

Applicability to Specific Cases

1. Motor Vehicles

Plaintiff's recovery barred when the plaintiff's negligence proximately caused injury.

- One operating an automobile in a city street where the presence of obstructions is reasonably to be expected cannot properly assume that there is no obstruction ahead, and one is guilty of a lack of ordinary care if one proceeds along the street without looking for obstructions ahead, or if one drives the machine at such a rate of speed that it cannot be stopped within the distance that objects ahead of it can be seen, and cannot recover for injuries that would not have been sustained but for one's failure to exercise ordinary care to discover and avoid an obstruction ahead in the path of one's automobile. Western Union Tel. Co. v. Stephenson, 36 F.2d 47 (5th Cir. 1929).

When the plaintiff was traveling at 25 miles an hour over unfamiliar streets at night during a rainstorm and unable to see more than 8 feet in front of the car, he could not recover from city for injuries suffered when he collided with a center support of a railroad underpass, said injuries being the result of his own negligence. Burd v. City of Atlanta, 52 Ga. App. 681, 184 S.E. 412 (1936).

Plaintiff, in passing stopped automobile at a speed of 35 to 40 miles an hour, without taking the plaintiff's vision from such automobile to ascertain or attempt to ascertain that the way ahead was clear and safe for passing, was not in the exercise of ordinary care and such negligence proximately caused the plaintiff's injuries; the fact that the plaintiff was unfamiliar with the road and did not know for what reason the automobile had stopped did not relieve the plaintiff of the duty of using ordinary care in ascertaining or attempting to ascertain whether it was safe to pass it. Anderson v. Southern Ry., 88 Ga. App. 195, 76 S.E.2d 528 (1953).

If the defendant driver's directing the plaintiff to go behind an automobile and push the automobile out of the highway, and the line of on-coming heavy traffic was so obviously dangerous as to constitute the defendant's action in doing so gross and wanton negligence, then the danger must necessarily have been equally obvious to the plaintiff; and as the defendant host driver had no power of compulsion over the plaintiff guest, the assumption of the risk by the plaintiff must be assumed, and consequently the trial court did not err in sustaining the demurrer (now motion to dismiss) to the petition and in dismissing the case. Beasley v. Elder, 88 Ga. App. 419, 76 S.E.2d 849 (1953).

Plaintiffs' child was the author of the child's own misfortune in ploughing headlong at an unabated speed into a clearly visible obstruction in the street, when in the exercise of ordinary prudence the child could have avoided the obstruction by stopping the vehicle or by turning aside to avoid striking the obstruction. Atlanta Gas Light Co. v. Brown, 94 Ga. App. 351, 94 S.E.2d 612 (1956), later appeal, 96 Ga. App. 771, 101 S.E.2d 603 (1957).

Plaintiff's negligence not bar if all reasonable care taken.

- When the plaintiff does everything which the plaintiff can reasonably have been expected to do under the circumstances to prevent injuries, and since had the plaintiff left the plaintiff's car at night on a public highway the plaintiff would have submitted oneself and the plaintiff's children to greater danger than would have been prevalent had the plaintiff remained in the car, the plaintiff is not barred from recovery by the plaintiff's own negligence. Bell v. Proctor, 92 Ga. App. 759, 90 S.E.2d 84 (1955), rev'd on other grounds, 212 Ga. 325, 92 S.E.2d 514 (1956).

Danger must be absolutely clear to render plaintiff's act negligent in law.

- In order for a court to rule as a matter of law that the plaintiff's alleged contributory negligence is the proximate cause of a collision, the observed approaching danger must be so near or rapid in approach as to render the act of the plaintiff a manifestly foolhardy act, such as would not be undertaken by an ordinarily prudent person. Brooks v. Douglas, 154 Ga. App. 54, 267 S.E.2d 495 (1980).

Riding in cargo area of truck not negligence in law.

- It cannot be said that everyone who rides in the cargo area of a pickup truck is guilty of such lack of ordinary care for one's own safety that one would be barred from recovery as a matter of law. Day v. Phillips, 107 Ga. App. 824, 131 S.E.2d 778 (1963).

Using highway with known defects may constitute negligence as matter of law.

- When a defect or dangerous excavation exists in a highway and is known to one who elects to use such highway, such election, even if justified by the dictates of ordinary prudence, must as a matter of law entail the consequences of a want of ordinary care and prudence. Lacy v. City of Atlanta, 110 Ga. App. 814, 140 S.E.2d 144 (1964).

Highway danger must be obvious.

- A traveler on the public highway, exercising due care, although the traveler knows there is some danger in driving over a defective bridge, may recover for injuries thus sustained, unless the danger is obviously of such a character that driving over the bridge, in and of itself, amounts to a want of ordinary care. Warren County v. Battle, 48 Ga. App. 240, 172 S.E. 673 (1934).

Question of contributory negligence in use of public highway with knowledge of dangerous condition therein or at side thereof is particularly one for determination of jury under appropriate instructions as to the applicable law by the trial judge. The mere fact that the pile of sand, or other material placed in or upon the edge of the highway in question by the defendant contractor, could have been seen by the plaintiff would not, as a matter of law, bar the plaintiff from recovering from the defendant. Williams v. Evans, 50 Ga. App. 496, 178 S.E. 460 (1935).

Error to charge jury on contributory negligence when no evidence of such.

- When the plaintiff was injured in a collision between the automobile operated by the plaintiff's husband in which the plaintiff was traveling as a guest and an automobile operated by the defendant, it was error for the court to charge the jury that if the plaintiff could have prevented the plaintiff's injury by the exercise of ordinary care the plaintiff could not recover as there was no evidence to authorize a finding that the defendant had been in any way negligent. Wade v. Drinkard, 76 Ga. App. 159, 45 S.E.2d 231 (1947).

If guest in car is so heedless of one's own safety that the guest fails to exercise ordinary care, such will prevent recovery for injuries. Bell v. Proctor, 92 Ga. App. 759, 90 S.E.2d 84 (1955), rev'd on other grounds, 212 Ga. 325, 92 S.E.2d 514 (1956).

Mere knowledge of driver's drinking not negligence in law.

- Mere knowledge on the part of a passenger that the driver is under the influence of intoxicating beverages is not, as a matter of law, knowledge that such person is so much under the influence of intoxicants as not to be able to drive safely or with ordinary efficiency so as to make the passenger guilty of such lack of ordinary care for the passenger's own safety, or assumption of risk, as will bar a recovery against the driver for injuries occasioned by the driver's gross negligence. In such case, the negligence of the driver and that of the guest may be compared. Petroleum Carrier Corp. v. Jones, 127 Ga. App. 676, 194 S.E.2d 670 (1972).

Knowledge of driver's drinking cannot be assumed.

- The mere fact that, in an action by a guest against the host-driver of an automobile in which the plaintiff was riding, it is alleged that the host was driving the automobile under the influence of intoxicating liquors does not require the conclusion that the plaintiff knew of such intoxication at the time the plaintiff entered the automobile or in time to have avoided any injury resulting from such negligence. Stephenson v. Whiten, 91 Ga. App. 110, 85 S.E.2d 165 (1954).

When the plaintiff was a guest passenger, there was no duty resting upon the plaintiff to do any act regarding operation of third party defendant's car or otherwise take any affirmative action, and nothing in the record showed any negligence on the plaintiff's part; any charge relating to negligence on the part of the plaintiff was unwarranted. Wallace v. Yarbrough, 155 Ga. App. 184, 270 S.E.2d 357 (1980).

When the pedestrian recklessly exposes oneself to danger and such action or omission proximately contributes to the pedestrian's injury, the pedestrian cannot recover for any mere negligence of the driver, but may still recover when the acts of the driver are malicious, willful, or intentional. Elrod v. Anchor Duck Mill, 50 Ga. App. 531, 179 S.E. 188 (1935).

Pedestrian, when lawfully using public highways, is not bound to be continually looking and listening to ascertain if automobiles are approaching, under the penalty that if the pedestrian fails to do so and is injured, it must be conclusively presumed that the pedestrian was negligent. Eubanks v. Mullis, 51 Ga. App. 728, 181 S.E. 604 (1935).

A streetcar passenger on alighting from the car is not necessarily bound, as a matter of law, to look out for any automobile being driven in violation of a statute as to passing a streetcar which has stopped for the purpose of receiving or discharging passengers. Hexter v. Burgess, 52 Ga. App. 819, 184 S.E. 769 (1936).

It cannot be affirmed as a fixed rule that one crossing a street or highway diagonally must turn and look back, as whether one should do so depends on the circumstances of the particular case; one must be alert, but when one must look depends on the law of the road, the current of traffic, means of observation, the local conditions, the position and direction of moving vehicles, and other factors. Wright v. Bales, 62 Ga. App. 328, 7 S.E.2d 765 (1940).

The failure of a pedestrian in crossing a street and before passing over the center thereof to look to the pedestrian's right for a truck approaching from the pedestrian's right and moving along the left side of the street relative to the direction in which the truck was traveling was not contributory negligence as a matter of law. Wright v. Bales, 62 Ga. App. 328, 7 S.E.2d 765 (1940).

Pedestrian not negligent in using defective sidewalk when danger not comprehended.

- A pedestrian using a sidewalk which a municipal corporation is negligent in maintaining in a condition unsafe for travel is not, as a matter of law, guilty of negligence barring a recovery in failing to observe the condition in the sidewalk although it may be patent and could be observed by the pedestrian if the pedestrian would look, when it does not appear that by looking the pedestrian would have a full appreciation of the danger and risk involved in using the sidewalk. Lacy v. City of Atlanta, 110 Ga. App. 814, 140 S.E.2d 144 (1964).

Whether pedestrian is negligent is jury question.

- When a pedestrian, after passing between two parked automobiles looked to the pedestrian's left for traffic, but instantly and before the pedestrian had time to look to the pedestrian's right was struck and injured by an automobile being driven on the left side of the street, that is "astraddle" and to the left of the center of that street, and when the pedestrian could have seen the automobile had the pedestrian had time to look to the pedestrian's right, and the driver of the automobile could have seen the pedestrian had the pedestrian been looking, and since the street to the right of the driver of the automobile at this point was clear and could have been used by that automobile at the time of the accident, it was a question for a jury to determine whose negligence was responsible for the injury; and it was error to grant a nonsuit. Eubanks v. Mullis, 51 Ga. App. 728, 181 S.E. 604 (1935).

Whether a pedestrian, who in crossing a street and before reaching the center thereof was hit by an automobile being driven on the left-hand side of the street or road relative to the direction in which the automobile was traveling, was negligent in not looking to the pedestrian's right for the automobile approaching in that direction was a jury question. Wright v. Bales, 62 Ga. App. 328, 7 S.E.2d 765 (1940).

Jury instructions on negligence of plaintiff-passenger.

- Several portions of the trial court's charge to the jury, which presented a negligence issue concerning the plaintiff-passenger of a motorcycle driver without its headlight on, were authorized only if there was evidence of the plaintiff's negligence sufficient to bar the plaintiff from recovering in the action for damages arising from a motor vehicle collision; the question is whether there is any evidence that the plaintiff had actual knowledge of some hazard to which the plaintiff was being exposed by the manner in which the driver of the motorcycle was operating that vehicle and whether this knowledge was coupled with the opportunity to take appropriate action to avoid personal injury or to warn the host driver of the hazard. Exum v. Long, 157 Ga. App. 592, 278 S.E.2d 13 (1981).

Lighting defect irrelevant when driver saw vehicle.

- If driver actually saw the truck, stopped the driver's vehicle, and then struck the truck while attempting to pass it, the presence or absence of any lighting fixture or warning feature on the rear of the truck would not be a causal factor in the plaintiff's injuries. Lewis v. Atlanta Cas. Co., 179 Ga. App. 185, 345 S.E.2d 858 (1986).

Driving at speed excessive for limited vision.

- It is not necessarily such a lack of ordinary care on the plaintiff's part as will defeat a recovery for the operator of a properly equipped automobile to drive it in the night at such a rate of speed that the plaintiff cannot stop it within the limit of the plaintiff's vision ahead. McDowall Transp., Inc. v. Gault, 80 Ga. App. 445, 56 S.E.2d 161 (1949).

Inability to stop in sufficient time.

- The mere fact that a plaintiff driving a properly equipped automobile at 35 miles an hour is unable to stop when the weather was inclement, over a wet pavement which was nearly the color of the body of the truck, which had been brought almost to a stop in the highway, at night without any taillight burning, does not necessarily and as a matter of law establish negligence upon the party of the plaintiff, for the question still remains whether the plaintiff's conduct, in view of all the attendant circumstances and conditions, measures up to that of the ordinarily prudent person which is the standard required by law in this state. Bach v. Bragg Bros. & Blackwell, 54 Ga. App. 574, 186 S.E. 711 (1936).

Failure to allow for lack of visibility.

- When there was evidence from which it could be inferred that the plaintiff-driver was familiar with the lack of visibility at the intersection yet took no precautionary measures, such as significantly reducing the plaintiff's speed, to allow for such lack of visibility, the trial court did not err in charging the jury on the doctrine of avoidable consequences. Stroud v. Woodruff, 183 Ga. App. 628, 359 S.E.2d 680 (1987).

Decedent's contributory negligence barred recovery as a matter of law in a widower's wrongful death suit based on a vehicular collision because the decedent failed to avoid the consequences of the defendants' alleged negligence in obstructing the view of a certain left-hand turn with a stalled loader onto a state route familiar to the decedent. Weston v. Dun Transp. & Stringer, Inc., 304 Ga. App. 84, 695 S.E.2d 279 (2010).

Intoxicated unlicensed driver could not recover from intoxicated passenger who was seated in the rear of the automobile at the time of the accident since the driver had the last opportunity to avoid the effect of alcohol and the driver's incompetence, notwithstanding any negligence in the passenger's failure to seize control of the vehicle. Spivey v. Sellers, 185 Ga. App. 241, 363 S.E.2d 856 (1987).

2. Railroads

No person can recover damages from railroad company for injuries if injuries are caused by one's own negligence or when by the exercise of ordinary care one could have avoided the consequences caused by the company's negligence. Coleman v. Western & Atl. R.R., 48 Ga. App. 343, 172 S.E. 577 (1933).

Person going upon railroad track unaware of approach of train is not thereby, as a matter of law, guilty of negligence barring a recovery. Porter v. Southern Ry., 73 Ga. App. 718, 37 S.E.2d 831 (1946).

The attempt of a plaintiff who was not aware of the approach of the train to cross the railroad tracks at this crossing cannot, as a matter of law, be said to constitute such negligence upon the plaintiff's part as would bar a recovery. Porter v. Southern Ry., 73 Ga. App. 718, 37 S.E.2d 831 (1946).

Crossing of streetcar track.

- It would not be contributory negligence for a plaintiff to attempt to cross a streetcar track if the plaintiff did not see the streetcar approaching, and by the exercise of ordinary care could not have seen it. Brown v. Savannah Elec. & Power Co., 46 Ga. App. 393, 167 S.E. 773 (1932).

All that is required of person about to cross ahead of observed railroad car is that person exercise reasonable care. Brown v. Savannah Elec. & Power Co., 46 Ga. App. 393, 167 S.E. 773 (1932).

Failure to stop and look not lack of due care as matter of law.

- It cannot be said, as a matter of law, that the failure on the part of a person approaching and entering into a railroad crossing, and unaware of the approach of a train, to stop, look, and listen renders the person guilty of the lack of ordinary care. Brown v. Savannah Elec. & Power Co., 46 Ga. App. 393, 167 S.E. 773 (1932); Pollard v. Cartwright, 60 Ga. App. 630, 4 S.E.2d 693 (1939); Porter v. Southern Ry., 73 Ga. App. 718, 37 S.E.2d 831 (1946).

It is not, as a matter of law, negligence proximately causing an injury for a person injured at a public railroad crossing by an approaching train to proceed across the railroad track at the crossing without observing the approaching train, although had the plaintiff looked the plaintiff could have seen the train approaching in time to have avoided the injury. Pollard v. Harris, 51 Ga. App. 898, 181 S.E. 593 (1935).

When the evidence is sufficient to authorize an inference that the train was being operated negligently as respects the safety of persons upon the crossing, notwithstanding the person injured may have gone upon the crossing ahead of the approaching train without looking and without seeing the train, and could have seen the train had the person looked, the inference is not demanded, as a matter of law, that the injury was proximately caused by the negligence of the person injured, but the evidence was sufficient to authorize the inference that the injury was proximately caused by the negligence of the defendant, or by the negligence of both by an application of the rule of comparative negligence. Pollard v. Harris, 51 Ga. App. 898, 181 S.E. 593 (1935).

No lack of due care as matter of law when decedent made reasonable check.

- Since the deceased made a reasonable effort to ascertain whether or not the deceased could safely cross the railroad track, a court cannot say, as a matter of law, that the deceased was not in the exercise of due care in undertaking to cross the track under the circumstances alleged. Porter v. Southern Ry., 73 Ga. App. 718, 37 S.E.2d 831 (1946).

When because of the vibration of the car in operation and the running of the motor the deceased did not hear the whistle of the approaching train and could not have heard it in the exercise of ordinary care, and when after bringing the deceased's car to a halt about 20 feet from the track the deceased looked westerly for approaching trains and did not see the train or its headlight, the deceased's vision being partially obscured by a water tank of the defendant, and further obstructed and obscured by the rainy and misty atmosphere and the cloudiness of the windows of the deceased's car, the deceased was not as a matter of law guilty of contributory negligence barring recovery. Porter v. Southern Ry., 73 Ga. App. 718, 37 S.E.2d 831 (1946).

Recovery barred when the plaintiff's contributory negligence proximately caused injury.

- When there was evidence that the plaintiff proceeded across a track at a crossing, in the wake of a train which had just passed, when, at the time, the plaintiff's vision along a parallel track upon which a train of the defendant was approaching was obscured by the train which had just passed, and that for this reason the plaintiff could see along this track only a distance of 20 feet, that the plaintiff proceeded upon the track on which the approaching train was coming, and was hit by the train and injured, the evidence was sufficient to authorize the inference that the plaintiff, in crossing the railroad tracks, was not in the exercise of ordinary care, and in so doing was guilty of such negligence as proximately caused the injuries or contributed thereto. Central of Ga. Ry. v. Cooley, 44 Ga. App. 118, 160 S.E. 812 (1931).

A street railway company is not liable in damages to the plaintiff because of a collision between a streetcar and the plaintiff's automobile at a crossing that is brought about solely by the plaintiff's mistaken judgment that the plaintiff had ample time to drive the plaintiff's automobile across the defendant's railway tracks ahead of the on-coming streetcar. Kirk v. Savannah Elec. & Power Co., 50 Ga. App. 468, 178 S.E. 470 (1935).

When the plaintiff can see smoke emitted from the locomotive that completely obscures the highway when the plaintiff drives into it, being unable to see what is ahead of the plaintiff, and hits a parked truck, the plaintiff takes the chance of there being some hidden obstruction or danger within the smoke, and therefore proceeds at the plaintiff's peril, and has no right to recover from either defendant. Reid v. Southern Ry., 52 Ga. App. 508, 183 S.E. 849 (1936).

A driver of an automobile who knows that the driver is approaching a railroad crossing in the nighttime and fails to reduce the speed of the driver's car so that it may be stopped within the range of the driver's lights when the driver discovers that a train of cars is stopped or passing over such crossing is guilty of such a lack of ordinary care as will prevent a recovery from the railroad. Pollard v. Clifton, 62 Ga. App. 573, 9 S.E.2d 782 (1940).

Although a railroad company may have been negligent in bringing about a plaintiff's death, when such negligence was not wanton and willful, and when it appears that the deceased was not exercising ordinary care for the deceased's own safety and could have avoided the consequences of the defendant's negligence by the exercise of such care, the deceased's widow may not recover. Porter v. Southern Ry., 73 Ga. App. 718, 37 S.E.2d 831 (1946).

One who recklessly tests an observed and clearly obvious danger, such as attempting to beat a near and rapidly approaching railroad train or street car over a crossing, or to pass an intersecting highway in front of a near and speeding automobile having the right-of-way, notwithstanding one's own honest but mistaken judgment that one has ample time to get across, may under the particular facts be held to have failed to exercise that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances and may be held to be guilty of contributory negligence, which will be deemed the proximate cause of one's resulting injury, and which will, in the absence of willful or wanton misconduct by the defendant, preclude recovery. Porter v. Southern Ry., 73 Ga. App. 718, 37 S.E.2d 831 (1946).

One who deliberately goes upon a railroad track in front of an approaching train thinking that one can cross before the train reaches the person and miscalculating its speed because the person is in front of it, cannot recover for injuries resulting from being run down by the train, although the company's servants may also have been negligent in running at a high rate of speed at that point, and also in failing to check the speed of the train at a public road which crossed the track between the place where the train was when first seen by the plaintiff and the point at which the injury occurred. Porter v. Southern Ry., 73 Ga. App. 718, 37 S.E.2d 831 (1946).

The widow of one who goes upon a railroad track, fully aware of an approaching train after having heard the whistle and having seen the headlight of the train, and who miscalculated its speed and distance from the crossing because of the darkness and mist of a rainy night, cannot recover for death resulting from being struck by the train, although the company's servants may have been negligent, if the company's negligence was not willful or wanton. Porter v. Southern Ry., 73 Ga. App. 718, 37 S.E.2d 831 (1946).

The petition by a widow against a railroad company seeking damages for the tortious death of her husband, in a collision of a truck driven by her husband and an engine of the railroad, when her husband saw the engine and slowed the truck and attempted to go around it, was subject to general demurrer (now motion to dismiss) because it showed that her husband could have avoided whatever negligence the railroad was guilty of by the exercise of ordinary care. Atlantic Coast Line R.R. v. Dolan, 84 Ga. App. 734, 67 S.E.2d 243 (1951).

If a plaintiff voluntarily places oneself upon a railroad track almost immediately in front of a rapidly moving train, with knowledge of the danger, thinking one has time to get across before the train reaches one, and one miscalculates, one's own negligence must be taken as the sole proximate cause of one's misfortune. Hoover v. Seaboard Air Line R.R., 107 Ga. App. 342, 130 S.E.2d 247 (1963).

Jumping from moving train.

- Plaintiff's injuries were solely caused by the plaintiff's own decision to jump from a train after helping a passenger on board, and a car attendant's actions did not constitute an inducement to the plaintiff to attempt to leave the train while in motion, since the attendant exercised no control over the movement or management of the train, and the attendant specifically advised the plaintiff to remain on the train until the train stopped at the next station. Giargiari v. National R.R. Passenger Corp., 185 Ga. App. 723, 365 S.E.2d 875 (1988).

No recovery by representative when decedent would be barred.

- If a deceased person could not have recovered for injuries had the deceased survived the collision, because the deceased was lacking in ordinary care in undertaking to cross the railroad tracks, the deceased's widow cannot recover for the deceased's death. Porter v. Southern Ry., 73 Ga. App. 718, 37 S.E.2d 831 (1946).

Plaintiff's contributory negligence presents jury question.

- In an action against a railroad company for injuries received by a person lawfully upon a railroad crossing, the question of what such person must or must not do, in order to free oneself of guilt of lack of ordinary care constituting the proximate cause of one's injury, is a question for the jury. Porter v. Southern Ry., 73 Ga. App. 718, 37 S.E.2d 831 (1946).

3. Applicability of O.C.G.A. § 46-8-291

Both former Code 1933, §§ 94-703 and 105-603 (see now O.C.G.A. §§ 46-8-291 and51-11-7) were applicable in suit against railroad and constitute separate defenses. Underwood v. Atlanta & W. Point R.R., 105 Ga. App. 340, 124 S.E.2d 758, aff'd in part and rev'd in part, 218 Ga. 193, 126 S.E.2d 785 (1962).

Common law rule distinguished.

- The common-law rule that if the injury to or death of a person resulted from any negligence attributable to the person, regardless of the degree, there could be no recovery and no apportionment of damages was changed in this state by former Code 1933, §§ 94-703 and 105-603 (see now O.C.G.A. §§ 46-8-291 and51-11-7). Southland Butane Gas Co. v. Blackwell, 211 Ga. 665, 88 S.E.2d 6 (1955). But see Garrett v. NationsBank, 228 Ga. App. 114, 491 S.E.2d 158 (1997).

Former Code 1933, §§ 94-703 and 105-603 (see now O.C.G.A. §§ 46-8-291 and51-11-7) when read together, introduce variation from common law in one respect only. The statute's declare first that a plaintiff shall not recover when the accident was caused by the plaintiff's own negligence, and the statute's further declare that even if the defendant was negligent in such a way as to cause the injury, the plaintiff shall not recover if, with the defendant's negligence as an existing condition of the situation, the plaintiff could have avoided its consequences by ordinary care; these rules are the same as those established at the common law. However, these sections provided that when the negligence of both parties was concurrent and contributed to the injury, then the plaintiff shall not, as at common law, be barred entirely, but may recover damages reduced below full compensation for the injury by an amount proportioned to the amount of the default attributable to the plaintiff. Atlantic Coast Line R.R. v. Mitchell, 157 F.2d 880 (5th Cir. 1946).

Former Code 1933, §§ 94-703 and 105-603 (see now O.C.G.A. §§ 46-8-291 and51-11-7) have been applied to all kinds of negligence except when a special statute governs. Willis v. Jones, 89 Ga. App. 824, 81 S.E.2d 517 (1954).

Former Code 1933, §§ 94-703 and 105-603 (see now O.C.G.A. §§ 46-8-291 and51-11-7) were in pari materia and must be construed with reference to each other. Georgia Power Co. v. Gillespie, 48 Ga. App. 688, 173 S.E. 755 (1934).

Distinctions.

- The defense stated in former Code 1933, § 94-703 (see now O.C.G.A. § 46-8-291) to the effect that a plaintiff cannot recover for injuries caused by the plaintiff's consent or due to the plaintiff's own negligence is separate and distinct from the additional limitation or qualification of the right to recover stated in former Code 1933, § 105-603 (see now O.C.G.A. § 51-11-7), which provided that, notwithstanding the perilous situation might have been brought about in whole or in the greater part by the negligent acts of the defendant, it is nevertheless incumbent upon the injured party to exercise the care of an ordinarily prudent person to ascertain the defendant's negligence and thereafter to avoid its consequences. Donaldson v. Central of Ga. Ry., 43 Ga. App. 480, 159 S.E. 738 (1931).

Former Code 1933, §§ 94-703 and 105-603 (see now O.C.G.A. §§ 46-8-291 and51-11-7) were not identical and should not be confused. Former Code 1933, § 94-703 provided that no recovery from a railroad company can be had when an injury has been occasioned by the plaintiff's own negligence (lack of ordinary care), while former Code 1933, § 105-603 forbid a recovery when the plaintiff by ordinary care could have avoided the consequences caused by the defendant's negligence. Georgia Power Co. v. Holmes, 175 Ga. 487, 165 S.E. 284 (1932).

Rule of law under former Code 1933, § 105-603 (see now O.C.G.A. § 51-11-7) gave the defendant a complete and perfect defense that was in no wise limited by the comparative negligence rule embodied in former Code 1933, § 94-703 (see now O.C.G.A. § 46-8-291). Pollard v. Kent, 59 Ga. App. 118, 200 S.E. 542 (1938).

Under former Code 1933, §§ 94-703 and 105-603 (see now O.C.G.A. §§ 46-8-291 and51-11-7), there can be no recovery of damages when the injured party has failed to use ordinary care to prevent an injury to oneself, unless the injury be willfully and wantonly inflicted upon the injured party. Southland Butane Gas Co. v. Blackwell, 211 Ga. 665, 88 S.E.2d 6 (1955). But see Garrett v. NationsBank, 228 Ga. App. 114, 491 S.E.2d 158 (1997).

There were only two exceptions in former Code 1933, §§ 94-703 and 105-603 (see now O.C.G.A. §§ 46-8-291 and51-11-7), as applied by the courts to the right of recovery by a plaintiff who has been guilty of negligence concurring with that of the defendant to cause an injury; one is that a plaintiff may not recover if the plaintiff could have avoided the negligence of the defendant by exercise of ordinary care, and the other is that a plaintiff cannot recover if the plaintiff's negligence is equal to or greater than that of the defendant. Willis v. Jones, 89 Ga. App. 824, 81 S.E.2d 517 (1954).

Jury instructions.

- Former Code 1933, § 105-603 (see now O.C.G.A. § 51-11-7) and the latter part of former Code 1933, § 94-703 (see now O.C.G.A. § 46-8-291) should not be given in immediate connection with each other without making the proper explanation as to the class of cases to which the latter section was applicable. Americus, P. & L.R.R. v. Luckie, 87 Ga. 6, 13 S.E. 105 (1891); Macon, D. & S.R.R. v. Moore, 99 Ga. 229, 25 S.E. 460 (1896); Livsey v. Georgia Ry. & Elec. Co., 19 Ga. App. 687, 91 S.E. 1074 (1917).

When contributory negligence was in issue and the court charges the jury as to recovery of diminished damages, as embraced in former Code 1933, § 94-703 (see now O.C.G.A. § 46-8-291), it was error not to qualify such doctrine by charging the jury that, as provided in former Code 1933, § 105-603 (see now O.C.G.A. § 51-11-7), the plaintiff cannot recover if the plaintiff could, by the exercise of ordinary care, have avoided the consequences to the plaintiff caused by the defendant's negligence; but when the court, in stating to the jury a number of contingencies in which the plaintiff could not recover, instructed the jury that if the negligence of the plaintiff was equal to or greater than that of the defendant the plaintiff could not recover, the charge was not error, because if the plaintiff's negligence was equal to or greater than that of the defendant, the defendant would not be liable, and the qualification was unnecessary. Berry v. Jowers, 59 Ga. App. 24, 200 S.E. 195 (1938).

It was not error as tending to confuse the jury for the court to charge, in immediate connection with each other, former Code 1933, § 105-603 (see now O.C.G.A. § 51-11-7), the principle of law that if a person injured by the alleged negligence of a defendant railroad company could have avoided the consequences of the defendant's negligence, if any, after it arose or was impending, or in the exercise of ordinary care should have known of such negligence, such person could not recover, and former Code 1933, § 94-703 and 105-603 (see now O.C.G.A. § 46-8-291), that no person shall recover damages from a railroad company for an injury to oneself or one's property when the injury was done by one's own consent or is caused by one's own negligence; each was a separate and distinct proposition of law, and neither one modifies or qualifies the other. Southern Ry. v. Lee, 59 Ga. App. 316, 200 S.E. 569 (1938).

The court, in charging that if the person injured could have avoided the consequences of the defendant's negligence there could be no recovery, and that the exercise of ordinary care was a question of fact for the jury, and in charging immediately thereafter that no person can recover damages from a railroad company for injuries done by one's own consent or caused by one's own negligence, and that if the complainant and agent 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 default attributable to the agent, charged three separate, distinct, and independent propositions of law, no one of which, as given in the charge, was modified or qualified by the other. Southern Ry. v. Lee, 59 Ga. App. 316, 200 S.E. 569 (1938).

Charge that if complainant and agents of the defendant railroad company were both at fault the former could recover, but the damages should be diminished by the jury in proportion to the amount of default attributable to the agent, was not subject to the objection that it was given in direct connection with the charge that if the plaintiff, by the exercise of ordinary care, could have avoided the consequences of the defendant's negligence the plaintiff could not recover, and that no person can recover from a railroad company for an injury done by the plaintiff's own consent or caused by the plaintiff's own negligence, so that it misled the jury into the belief that the plaintiff might recover reduced damages even though the person injured failed to exercise ordinary care for the person's own protection or failed to exercise ordinary care to avoid the consequences to oneself of the defendant's negligence. The last two propositions of law were not given in connection with each other, but were given separately, each being a separate and distinct proposition of law, and neither one modifying or qualifying the other. Southern Ry. v. Lee, 59 Ga. App. 316, 200 S.E. 569 (1938).

4. Landlord-Tenant

Tenant may continue use of premises after notice to landlord of defects if use not negligent.

- Even after notice of defects given to the landlord the tenant is entitled to continue in the use of the premises without losing the tenant's right of redress for any damage sustained, provided the conduct of the tenant in so doing is not such as to preclude the tenant from recovering; and the tenant will not be so precluded unless by the exercise of ordinary care the tenant could have avoided the consequences of the defendant's negligence. Mathis v. Gazan, 51 Ga. App. 805, 181 S.E. 503 (1935).

Continued use if danger not apparent.

- Even after the tenant may have notice of defects in the premises, the tenant may yet continue to use the premises, including the part of the premises which are defective, if the tenant does not know they are dangerous or has no reasonable ground to suspect such to be the fact; use of the premises could not be legally considered negligent. Mathis v. Gazan, 51 Ga. App. 805, 181 S.E. 503 (1935).

Tenant's recovery barred when continued use negligent.

- When rented premises become out of repair, it is the duty of the tenant to notify the landlord thereof and to abstain from the use of that part of the premises the use of which is attended with danger. It is the tenant's duty to use ordinary care, and if by the use of such care the consequences of the defendant's negligence could have been avoided, the tenant cannot recover of the landlord for injuries caused by the failure of the landlord to repair such defect in the premises. Yancey v. Peters, 49 Ga. App. 128, 174 S.E. 182 (1934).

Allegations on the part of a tenant in an action against the landlord for failing to repair the premises that the tenant continued to use when the tenant knew the premises were dangerous convicted the tenant of the failure to exercise ordinary care to avoid the negligence of the landlord. It thus precluded the tenant, under the law, from recovery under the allegations of the petition. Bixby v. Sinclair Ref. Co., 74 Ga. App. 626, 40 S.E.2d 677 (1946).

In suit by a tenant against a landlord for personal injuries resulting from the defective condition of the premises, when injury resulted to the plaintiff's spouse as a result of defects in a part of the premises which the spouse continued to use after knowledge that it was in a weak and unsafe condition, the failure on the spouse's part to exercise ordinary care for the spouse's own safety by refraining from the use of such portion of the premises and thus avoiding the consequences caused by the defendant's negligence would be held to be the sole proximate cause of the injuries received. Harris v. Edge, 92 Ga. App. 827, 90 S.E.2d 47 (1955); Taylor v. Boyce, 105 Ga. App. 434, 124 S.E.2d 647 (1962).

Owner did not have superior knowledge of danger.

- Trial court did not err in granting co-owners' motions for summary judgment in a wrongful death action filed by a decedent's mother and sister because the co-owners did not have superior knowledge of the danger posed by the retaining wall from which the decedent fell, and the decedent had actual knowledge of the hazard; the fact that an owner was negligent per se in failing to comply with a building code does not impose liability when the owner lacks superior knowledge of the hazard. Barnes v. Morganton Baptist Ass'n, 306 Ga. App. 755, 703 S.E.2d 359 (2010).

5. Miscellaneous

Adult servant may assume risks in course of employment.

- An adult servant of ordinary intelligence will be held to be affected with knowledge of a manifest risk, or danger incident to the doing of a particular thing in the operation of a machine, during employment, although the servant may be inexperienced as to such operation and though the master may have failed to instruct the servant in respect thereto. Union Carbide Corp. v. Holton, 136 Ga. App. 726, 222 S.E.2d 105 (1975).

Failure of store proprietor to assist customer.

- Even though the grocery store manager may have breached a duty to help the plaintiff call police to report a theft committed against the plaintiff in the store, the plaintiff was not entitled to recover since pay phones were available to the plaintiff to report the crime and by the exercise of ordinary care the plaintiff could have easily have prevented all harm to the plaintiff. Winn-Dixie Stores, Inc. v. Nichols, 205 Ga. App. 308, 422 S.E.2d 209 (1992).

Air conditioning unit extending from building.

- Maintenance of an air conditioning unit which extends approximately 2 feet from the side of a building, even at head level, does not constitute negligence on the part of the defendant. The presence of such equipment on the side of the building can easily be anticipated and the plaintiff did not exercise ordinary care for the plaintiff's own safety in walking hurriedly, head down, less than 2 feet from the side of the building. Bonner v. Barnes, 103 Ga. App. 364, 119 S.E.2d 138 (1961).

Awareness of possible oil deposits on the center of the garage floor did not necessarily constitute constructive knowledge of possible oil deposits on the peripheral areas of the garage floor to preclude the plaintiff from recovering for the plaintiff's injuries resulting from a slip on a peripheral deposit. Willis v. Neal, 179 Ga. App. 732, 347 S.E.2d 700 (1986).

Gasoline pumps.

- Customer who stood holding a gushing gasoline pump over the customer's head for three to five minutes failed to exercise ordinary care for the customer's own safety since the customer could have stepped away from the flowing gasoline. Quiktrip Corp. v. Fesenko, 228 Ga. App. 287, 491 S.E.2d 504 (1997).

Parking lots.

- Whether the plaintiff maintained a reasonable lookout for the plaintiff's safety in crossing a restaurant parking lot, whether the plaintiff had greater or equal knowledge of the specific undulation in the pavement which constituted the hazard in this case, and whether the plaintiff exercised ordinary care for the plaintiff's own safety, were questions of fact to be resolved at trial. Jackson v. Waffle House, Inc., 245 Ga. App. 371, 537 S.E.2d 188 (2000).

In an action by a patron of a fast food restaurant, who fell over a raised curb while walking in the pitch dark of the restaurant's unlit parking lot and who was distracted by cars using the drive-through lane that the patron was crossing, the restaurant owner's action in failing to turn on the parking lot lights and the distractions created by the vehicles in the drive-through lane create material issues of fact as to whether the plaintiff exercised ordinary care for the plaintiff's own safety. Hamilton v. Kentucky Fried Chicken of Valdosta, Inc., 248 Ga. App. 245, 545 S.E.2d 375 (2001).

Trial court erred by granting the grocery store and the store's security company summary judgment in a personal injury action filed by the decedent's spouse, where the decedent was killed by a man who had entered the decedent's truck while the truck was parked in the store's parking lot, because there was a genuine issue of material fact regarding the decedent's exercise of ordinary care as a reasonable jury could conclude that because the decedent did not see that the man was armed, did not knowingly insert the decedent into an existing altercation, had no previous contact with the man or knowledge that the man intended harm, and did not inject the decedent into imminent danger, the decedent did not fail to exercise ordinary care in approaching the truck. Richey v. The Kroger Co., 355 Ga. App. 551, 845 S.E.2d 351 (2020).

Bailee's duty to exercise due care in use of defective bailed property.

- If a bailee knows of a defect in the thing bailed, or in the exercise of ordinary care ought to discover it, yet the bailee uses the thing and injury results on account of the defect, the bailee will be held to have waived the bailee's right to claim damages since by the exercise of ordinary care the bailee could have avoided the consequences of the bailor's neglect, but what amount of care the bailee ought to use to discover the defect is a question of fact for the jury. Queen v. Patent Scaffolding Co., 46 Ga. App. 364, 167 S.E. 789 (1933).

Comparative negligence rule not applicable in suit for destruction of bailed property.

- In a suit by a bailor against the bailee for the negligent destruction of the bailed property, the provision of this section relating to the exercise of ordinary care by the plaintiff was not applicable, and the trial judge erred in giving a charge under this section to the jury. Richter Bros. v. Atlantic Co., 59 Ga. App. 137, 200 S.E. 462 (1938), later appeal, 65 Ga. App. 605, 16 S.E.2d 259 (1941).

Child's capacity for contributory negligence.

- Due care in a child of tender years is such care as the child's capacity, mental and physical, fits the child for exercising in the actual circumstances of the occasion and situation under investigation. Rogers v. McKinley, 48 Ga. App. 262, 172 S.E. 662 (1934).

A child six or less cannot be guilty of contributory negligence. Red Top Cab Co. v. Cochran, 100 Ga. App. 707, 112 S.E.2d 229 (1959).

A young person of 15 or older is presumptively chargeable with diligence for the person's own safety when the peril is palpable and manifest. Beck v. Wade, 100 Ga. App. 79, 110 S.E.2d 43 (1959).

A one-year-old child cannot be contributorily negligent or charged with failure to exercise ordinary care as to the child's own safety. Reed v. Dixon, 153 Ga. App. 604, 266 S.E.2d 286 (1980).

While a defendant under 13 is protected by O.C.G.A. § 51-11-6, the plaintiff under 13 is not allowed to ignore the plaintiff's lack of due care and recover damages from a defendant whose negligence is less than that of the plaintiff. Barrett v. Carter, 248 Ga. 389, 283 S.E.2d 609 (1981).

Furnishing alcohol to minor.

- Restaurant employee was cited for a liquor license violation. As the employee's failure to appear in court as commanded by the citation was an obviously risky act, which led to the employee's arrest, and there was no showing that the restaurant's or supervisor's acts were wilful and wanton, recovery on the negligence claim against the restaurant and employee was barred by the employee's own negligence pursuant to O.C.G.A. § 51-11-7. Weaver v. Pizza Hut of Am., Inc., 298 Ga. App. 645, 680 S.E.2d 668 (2009), cert. denied, No. S09C1834, 2009 Ga. LEXIS 806 (Ga. 2009).

Defective stairway.

- While the plaintiff in descending the defendant's steps may have been looking at the steps and picking the plaintiff's way down as alleged in the petition, yet since the plaintiff did not know the actual condition of the steps as the plaintiff alleges, it cannot be said as a matter of law that the plaintiff was under the circumstances guilty of negligence in using the steps and that this negligence barred recovery. Scott v. Rich's, Inc., 47 Ga. App. 548, 171 S.E. 201 (1933).

Defective walkway.

- Since the plaintiff, injured while using a defective walkway, was not put on notice either at the time or on a previous crossing that a plank was defective because the plank was not firmly embedded in the soil, and the defendant city in replacing the plank did know was defective and accordingly should have known that if not firmly embedded would roll with the weight of a pedestrian, the defendant was not entitled to a directed verdict on the theory that the plaintiff failed to exercise ordinary care for the plaintiff's own safety. City of Commerce v. Bradford, 94 Ga. App. 284, 94 S.E.2d 160 (1956).

Elevator accident.

- Since the plaintiff was familiar with the surroundings and familiar with the elevator and knew there was a door on the opposite side of the elevator, the plaintiff having just come out of that door, and knew anyone could enter that door on the opposite side and move the elevator, and the plaintiff became engaged in conversation and neglected to notice the elevator, by the exercise of ordinary care the plaintiff could have avoided the injuries. Peniston v. Newnan Hosp., 40 Ga. App. 367, 149 S.E. 715 (1929).

When the plaintiff sought to recover damages for injuries caused to the plaintiff from stepping into an elevator shaft at night, and while it was alleged that the approach to the shaft was dimly lighted and that by reason of an optical illusion the plaintiff thought the elevator was in place, and without trying to ascertain whether it was in fact in place or not opened the door and stepped into the elevator shaft and fell down into the basement, the plaintiff, having operated the elevator for the plaintiff's own convenience at night and knowing that it was customary for other tenants in this building of the defendant to use the same elevator at night, was unable to maintain an action against the defendant for the plaintiff's injuries. Macon Sav. Bank v. Geoghegan, 48 Ga. App. 1, 171 S.E. 853 (1933).

Metal strip projecting from floor.

- Petition in an action for damages when properly construed disclosed that, as a matter of law and fact, the plaintiff (employee of a tenant of defendant) could have avoided the consequences to the plaintiff of the defendant's alleged negligence in maintaining in the doorway, leading from the hall to the office in which the plaintiff worked, a metal strip or threshold which projected one-fourth of an inch above the floor, over which the plaintiff alleged the plaintiff tripped and sustained the described injuries. Brim v. Healey Real Estate & Imp. Co., 56 Ga. App. 483, 193 S.E. 84 (1937).

Obstruction in highway.

- A person injured by reason of an obstruction and an excavation in a public highway is not as a matter of law precluded from recovery, on the ground of failure to exercise ordinary care for the person's own safety, because of having previous knowledge that the highway was under repair and knowledge of the presence and location of the obstruction and excavation, where the highway was left open to the public for travel. Williams v. Evans, 50 Ga. App. 496, 178 S.E. 460 (1935).

When the plaintiff had no knowledge of the existence of a peril, the plaintiff had a right to assume that the contractors working on the public road would themselves exercise due care, and whether or not the plaintiff exercised the care required of the plaintiff under the circumstances to avoid injury was a jury question. Powell v. Barker, 96 Ga. App. 592, 101 S.E.2d 113 (1957).

Parent may acquiesce in minor's assumption of risk.

- When the parent knew that the minor child was working in a hazardous situation for several years prior to the injury causing death and received at least part of the child's wages, the parent could not recover damages as the parent impliedly consented to the employment. Folds v. Penn, 51 Ga. App. 682, 181 S.E. 308 (1935).

If the parent acquiesces in the minor child's change of employment, with knowledge of the kind of work that the child is doing, the parent impliedly consents to the employment and is charged with having consented to the risk naturally incident thereto. Folds v. Penn, 51 Ga. App. 682, 181 S.E. 308 (1935).

Pathway known to be slick.

- Plaintiff, who saw and knew that sprinklers were throwing water upon and around the pathway where the plaintiff walked and who showed no reason why the plaintiff should not have seen and avoided the slick manhole cover which caused the plaintiff's fall, was not in the exercise of due care for the plaintiff's own safety and, therefore, could not recover. Bowman v. Richardson, 176 Ga. App. 864, 338 S.E.2d 297 (1985).

Plaintiff's continued use of defective chicken feed.

- After the defendant discovered that chicken feed was bad and thereafter failed to take any measures to remove the feed from the defendant's flocks but continued to accept four more loads of the same feed and continued to feed it to the chickens even though the defendant had reason to believe that the feed was in fact bad, there was evidence to support the charge on comparative negligence to the jury. Brooks v. Ralston Purina Co., 155 Ga. App. 164, 270 S.E.2d 347 (1980).

Plaintiff's familiarity with premises.

- One who is familiar with the premises cannot rely for recovery upon the negligence of the defendant in failing to correct a patent defect when such party had equal means with the defendant of discovering it or equal knowledge of its existence. McKnight v. Guffin, 118 Ga. App. 168, 162 S.E.2d 743 (1968).

Public warehouseman's failure to store.

- When the evidence was overwhelming that a public warehouseman failed to maintain and store sufficient pecan inventory as collateral and when there was sufficient evidence from which a jury could conclude that any attempt by the receipt holders to redeem the warehouse receipts would have been futile because the pecans designated as collateral were already damaged, and the remaining pecans did not belong to the warehouseman, there were genuine issues of material fact in dispute. Planters & Citizens Bank v. Pennsylvania Millers Mut. Ins. Co., 786 F. Supp. 991 (S.D. Ga. 1992), aff'd, 992 F.2d 328 (11th Cir. 1993).

Warehouse manager injured in gap between trailer and loading dock.

- A trial court erred by granting summary judgment to a driver, an employer, and a package delivery system corporation in a negligence action brought by a warehouse manager who was injured after the manager's foot slipped through an eight inch gap between a trailer and the bumpers of a loading dock as issues of material fact existed for a jury to determine as to whether the injured manager could have avoided the injury or whether the manager's actions in failing to see a gap between the trailer and the bumpers while carrying boxes was reasonable and in the ordinary course of business. McCray v. FedEx Ground Package Sys., 291 Ga. App. 317, 661 S.E.2d 691 (2008), cert. denied, 2008 Ga. LEXIS 664 (Ga. 2008).

Scaffolding and improper use by plaintiff.

- It could not be said as a matter of law that when the decedent used a scaffold furnished by the defendant to the decedent's employer, this constituted the taking of a risk of physical injury, the danger of which was so obvious that it amounted to a lack of ordinary care and diligence for the decedent's own safety. Queen v. Patent Scaffolding Co., 46 Ga. App. 364, 167 S.E. 789 (1933).

It could not be said as a matter of law that the act of the decedent in going at or near the end of the scaffold to do some work, when there was another on the scaffold to prevent it from tilting and to balance it, constituted such a lack of ordinary care and voluntary risk as would in and of itself amount to a failure to use ordinary care. Queen v. Patent Scaffolding Co., 46 Ga. App. 364, 167 S.E. 789 (1933).

Evidence as to a custom and practice of persons using a swinging scaffold to go beyond the ratchets towards the end thereof to work, when another is on the scaffold with such person, was admissible to show whether or not the decedent was guilty of lack of ordinary care in working near or at the end of the scaffold. Queen v. Patent Scaffolding Co., 46 Ga. App. 364, 167 S.E. 789 (1933).

Failure to use safety equipment.

- Plaintiff's failure to use a respirator the plaintiff had the foresight to bring on the plaintiff's own for purposes of working around turpentine sulfate amounted to a failure to exercise ordinary care to avoid the consequences of the risk posed by the turpentine. Grant v. Georgia Pac. Corp., 239 Ga. App. 748, 521 S.E.2d 868 (1999).

Spectator's assumption of risk.

- When a person wishing to witness a professional baseball game purchases a ticket and chooses or accepts a seat in a portion of the grandstand which is unprotected, the person voluntarily assumes the risk inherent in such a position, the person being presumed to know there is a likelihood of wild balls being thrown or batted into the grandstand thus unprotected, and when during the warm-up preliminary to playing such a professional baseball game a wild ball is thrown into that portion of the grandstand occupied by such spectator and the spectator is injured, the spectator cannot recover. Hunt v. Thomasville Baseball Co., 80 Ga. App. 572, 56 S.E.2d 828 (1949).

Telephone wire stretched across floor.

- Plaintiff was not entitled to recover from the telephone company for injuries received when the plaintiff tripped over a telephone cord running from a junction box on the wall to a telephone which was located on a table adjacent to a doorway in the plaintiff's home, where the telephone had been installed at the plaintiff's request some 20 years prior to the incident, and evidence showed that the plaintiff was aware of the danger involved in allowing the telephone cord to remain on the floor in front of the doorway, and by use of ordinary care could have avoided the consequences caused by the negligence, if any, of the company. Shamis v. Southern Bell Tel. & Tel. Co., 155 Ga. App. 513, 271 S.E.2d 658 (1980).

Unlighted construction area.

- Ditches opened near a dwelling house in the process of construction to accommodate water pipes, sewer lines, gas pipes, and for similar purposes do not constitute unusual hazards, nor do planks loosely or insecurely placed across the ditches for the use of workers engaged in building, and if failure of the contractor to furnish lights to reveal such hazards amounts to a failure on the contractor's part to exercise ordinary care to prevent injury to the subcontractor, the latter was equally negligent in going on and over the premises where it was to be reasonably expected perils and pitfalls incident to building activities exist and are concealed by the darkness. Braun v. Wright, 100 Ga. App. 295, 111 S.E.2d 100 (1959).

Firearms.

- Assumption of risk did not apply to an action for intentional tort and willful and wanton conduct when: (1) the deceased loaded a pistol, pointed the pistol at the defendant's head, and pulled the trigger; (2) the deceased then gave the pistol to the defendant, who may or may not have seen the deceased load the pistol; (3) the defendant then pointed the gun at the deceased's head and pulled the trigger; (4) the deceased told the defendant to do it again; and (5) the defendant pulled the trigger again and the gun fired and killed the deceased. McEachern v. Muldovan, 234 Ga. App. 152, 505 S.E.2d 495 (1998).

Suicide.

- The fact that the patient's suicide was volitional did not make it a rational act, nor did that alone relieve the hospital and physician of their duty to the patient. Brandvain v. Ridgeview Inst., Inc., 188 Ga. App. 106, 372 S.E.2d 265 (1988), aff'd, 259 Ga. 376, 382 S.E.2d 597 (1989).

Customer failed to exercise ordinary care for own safety.

- Trial court did not err in granting a lessee's motion for summary judgment in a customer's premises liability action under O.C.G.A. § 51-3-1 to recover damages for injuries the customer sustained when the customer fell down stairs in a shop because the customer failed to exercise ordinary care for the customer's own safety pursuant to O.C.G.A. § 51-11-7; despite the customer's inability to see beyond the merchandise, the customer continued to move in that direction, and the customer's attempt to walk between or over the thick clutter of merchandise, when there was not an aisle or clear area of floor visible, constituted a voluntary departure from the route designated and maintained by the lessee for the customers' safety and convenience and imposed a heightened duty of care for the lessee's own safety. Bartlett v. McDonough Bedding Co., 313 Ga. App. 657, 722 S.E.2d 380 (2012).

RESEARCH REFERENCES

Am. Jur. 2d.

- 57B Am. Jur. 2d, Negligence, §§ 797 et seq., 823 et seq., 940.

C.J.S.

- 65 C.J.S., Negligence, § 253 et seq.

ALR.

- Failure to stop, look, and listen at railroad crossing as negligence per se, 1 A.L.R. 203; 2 A.L.R. 767; 41 A.L.R. 405.

High-heeled shoes or character of apparel, as affecting contributory negligence of woman, 2 A.L.R. 1049.

Crossing street elsewhere than at regular crossing as contributory negligence precluding recovery for injury from defect or obstruction, 3 A.L.R. 1113.

Contributory negligence of one injured by striking object temporarily deposited in street, 9 A.L.R. 479.

Duty of pedestrian before crossing street to look for vehicles approaching on intersecting street, 9 A.L.R. 1248; 44 A.L.R. 1299.

Contributory negligence in falling on slippery walk, 13 A.L.R. 73.

Contributory negligence in disregarding or failing to await complete operation of safety gates or other safety appliance at crossing or draw, 13 A.L.R. 942.

Driving automobile across track in front of street car that has stopped to take on or let off passengers as negligence or contributory negligence, 14 A.L.R. 811.

Personal care required of one riding in automobile driven by another as affecting his right to recover against third person, 22 A.L.R. 1294; 41 A.L.R. 767; 47 A.L.R. 293; 63 A.L.R. 1432; 90 A.L.R. 984.

Contributory negligence of elevator passenger permitting part of body to project beyond car, 23 A.L.R. 45.

Contributory negligence or assumption of risk in disobeying rules or directions of master under counter directions by superior, 23 A.L.R. 315.

Contributory negligence of custodian of child as affecting right of parent to recover for its death or injury, 23 A.L.R. 655.

Failure to extinguish fire on adjoining property as contributory negligence precluding recovery for damage by fire spreading to plaintiff's property, 27 A.L.R. 285.

Contributory negligence in stepping into roadway where view is obscured by smoke, 28 A.L.R. 1279.

Civil liability growing out of mutual combat, 30 A.L.R. 199; 47 A.L.R. 1092.

Intoxication as affecting contributory negligence of one killed or injured at a railroad crossing, 36 A.L.R. 336.

Contributory negligence as defense to an action for death on waters within jurisdiction of admiralty, 50 A.L.R. 455.

Contributory negligence of passenger in standing near door of car, 50 A.L.R. 1365.

Reliance on dealer's or manufacturer's assurance that article is not dangerous as affecting question of contributory negligence, 55 A.L.R. 1047.

What amounts to gross or wanton negligence in driving an automobile precluding the defense of contributory negligence, 72 A.L.R. 1357; 92 A.L.R. 1367; 119 A.L.R. 654.

Assumption of risk of overstrain consequent upon failure of other employee to lift his share, 74 A.L.R. 157.

Excessive speed of automobile as affecting question whether excavation or other defect in highway is the proximate cause of accident, 82 A.L.R. 294.

Civil rights and liabilities as affected by failure to comply with regulations as to registration of automobile or motorcycle or licensing of operator, 87 A.L.R. 1469; 111 A.L.R. 1258; 163 A.L.R. 1375.

Applicability of state statutes and rules of law as affecting construction and application of provisions of Federal Employers' Liability Act relating to contributory negligence, assumption of risk, and comparative negligence, 89 A.L.R. 693.

Doctrine of last clear chance, 92 A.L.R. 47; 119 A.L.R. 1041, 171 A.L.R. 365.

Construction and effect of comparative negligence rule where there are more than one defendant, or where negligence of nonparties contributes to the injury, 92 A.L.R. 691.

Contributory negligence of pedestrian at street crossing as affected by statute or ordinance, 96 A.L.R. 786.

Pleading want of contributory negligence as waiver of right to presumption of freedom from negligence, 96 A.L.R. 1116.

Sufficiency of instruction on contributory negligence as respects the element of proximate cause, 102 A.L.R. 411.

Liability for injury to pedestrian who suddenly darts or steps into path of automobile, 113 A.L.R. 528.

Admissibility on issue of negligence or contributory negligence of statements warning one of danger, 125 A.L.R. 645.

Conclusiveness, as to negligence or contributory negligence, of judgment in death action, in subsequent action between defendant in the death action and statutory beneficiary of that action, as affected by objection of lack of identity of parties, 125 A.L.R. 908.

Assumption of risk or contributory negligence in riding in defective automobile, 138 A.L.R. 838.

Liability for injury to pedestrian due to condition of street or highway as affected by his blindness or other physical disability, 141 A.L.R. 721.

Statute abolishing or modifying contributory negligence rule in certain class of cases or situations, as denial of equal protection of the laws, 142 A.L.R. 631.

Contributory negligence as defense to action based on violation of statute or ordinance as to condition of premises of seller of intoxicating liquor, 144 A.L.R. 827.

Failure to look for or discover automobile approaching on wrong side of road as negligence or contributory negligence, 145 A.L.R. 536.

Statute which places burden of proof as to contributory negligence on defendant or creates a presumption against contributory negligence as applicable to actions by one person consequential damages resulting from injury to another, 147 A.L.R. 726.

Liability for injury to spectator at indoor athletic game or contest due to hazard incident thereto, 149 A.L.R. 1174.

What conduct on part of railroad, in connection with crossing accident, amounts to wantonness, wilfullness, or the like, precluding defense of contributory negligence, 151 A.L.R. 9

Negligence and contributory negligence in respect of delivery of petroleum products, 151 A.L.R. 1261.

Contributory negligence of one attempting to cross in front of an observed approaching train, as affected by increase of its speed, 154 A.L.R. 512.

Failure of guest to leave automobile because of host's misconduct or negligence as contributory negligence or assumption of risk constituting defense to automobile guest's action again owner or driver, 154 A.L.R. 924.

Passenger's protrusion of part of body beyond, or his riding outside, body of motorbus as contributory negligence, 157 A.L.R. 1212.

Liability for death of, or injury to, one seeking to rescue another, 158 A.L.R. 189.

Entering dark place on unfamiliar premises as contributory negligence, 163 A.L.R. 587.

Negligence of automobile passenger as to lookout or other precaution as affecting question of negligence or contributory negligence of driver, 165 A.L.R. 596.

Contributory negligence as defense to cause of action based upon violation of statute, 171 A.L.R. 894; 10 A.L.R.2d 853.

Custom or practice of drivers of motor vehicles as affecting question of negligence, 172 A.L.R. 1141; 77 A.L.R.2d 1327.

Contributory negligence as defense to action by state, United States, municipality, or other governmental unit, 1 A.L.R.2d 827.

Liability for injury to or death of participant in game or contest, 7 A.L.R.2d 704.

Contributory negligence of driver of motor vehicle as imputable to owner under statute making owner responsible for negligence of driver, 11 A.L.R.2d 143.

Failure to obtain occupational or business license or permit as defense to tort action, 13 A.L.R.2d 157.

Defenses of fellow servant and assumption of risk in actions involving injury or death of member of airplane crew, ground crew, or mechanic, 13 A.L.R.2d 1137.

Guest's knowledge that automobile driver has been drinking as precluding recovery, under guest statutes or equivalent common-law rule, 15 A.L.R.2d 1165.

Failure of occupants of motor vehicle stalled on railroad crossing to get out and move to place of safety as contributory negligence, 21 A.L.R.2d 742.

Pleading last clear chance doctrine, 25 A.L.R.2d 254.

Intoxication of person injured or killed as affecting applicability of last clear chance doctrine, 26 A.L.R.2d 308.

Sudden or unsignaled stop or slowing of motor vehicle as negligence, 29 A.L.R.2d 5.

Contributory negligence of physically handicapped or intoxicated person in boarding or alighting from standing train or car, 30 A.L.R.2d 334.

Attempt to board moving car or train as contributory negligence or assumption of risk, 31 A.L.R.2d 931.

Availability of last clear chance doctrine to defendant, 32 A.L.R.2d 543.

Adult's intentional bodily contact with electrified wire as contributory negligence, 34 A.L.R.2d 98.

Contributory negligence of one stepping or falling into shaft of nonautomatic elevator, 34 A.L.R.2d 1336.

Extension of hand, arm, or other portion of body from motor vehicle as contributory negligence, 40 A.L.R.2d 233.

Liability of one negligently causing fire for personal injuries sustained in attempt to control fire or to save life or property, 42 A.L.R.2d 494.

Overcrowding motor vehicle or riding in unusual position thereon as affecting liability for injury or damage, 44 A.L.R.2d 238.

Duty and liability of municipality as regards barriers for protection of adult pedestrians who may unintentionally deviate from street or highway into marginal or external hazards, 44 A.L.R.2d 633.

Contributory negligence, assumption of risk, or related defenses as available in action based on automobile guest statute or similar common law rule, 44 A.L.R.2d 1342.

Contributory negligence or assumption of risk as defense in action against physician or surgeon for malpractice, 50 A.L.R.2d 1043.

Contributory negligence or assumption of risk of passenger leaving seat before conveyance stops, 52 A.L.R.2d 585.

Contributory negligence of one jumping from moving motor vehicle, 52 A.L.R.2d 1433.

Contributory negligence of one standing in highway to attempt to warn approaching motorists of dangerous situation, 53 A.L.R.2d 1002.

Contributory negligence of railroad employee in jumping from moving train or car to avoid collision or other injury, 58 A.L.R.2d 1232.

Liability as between participants for accident arising from private automobile or other vehicle racing on public street or highway, 59 A.L.R.2d 481.

Contributory negligence of adult struck by train while walking or standing beside railroad track, 63 A.L.R.2d 1226.

Duty and standard of care, with respect to contributory negligence, of person with physical handicap, such as impaired vision or hearing, approaching railroad crossing, 65 A.L.R.2d 703.

Contributory negligence, assumption of risk, or intentional provocation as defense to action for injury by dog, 66 A.L.R.2d 916.

Intoxication, unconsciousness, or mental incompetency of person as affecting his status as guest within automobile guest statute or similar common-law rule, 66 A.L.R.2d 1319.

Application of last clear chance doctrine to cases involving collision between train and motor vehicle at railroad crossing, 70 A.L.R.2d 9.

Contributory negligence or assumption of risk as defense to action for damages from nuisance - modern views, 73 A.L.R.2d 1378.

Momentary forgetfulness of danger as contributory negligence, 74 A.L.R.2d 950.

Interference with airplane pilot or controls as negligence or contributory negligence, 75 A.L.R.2d 858.

Instructions on sudden emergency in motor vehicle cases, 80 A.L.R.2d 5.

Contributory negligence, in motor vehicle accident case, of pedestrian under physical disability, 83 A.L.R.2d 769.

Contributory negligence, assumption of risk, or the like, on part of passenger or guest in motor vehicle engaging in racing or similar contests, 84 A.L.R.2d 448.

Liability of owner, lessee, or operator for injury or death on or near loop-o-plane, ferris wheel, miniature car, or similar rides, 86 A.L.R.2d 350.

Liability for injury or death of child in refrigerator, 86 A.L.R.2d 709.

Payee's prior negligence facilitating forging of indorsement as precluding recovery from banking paying check, 87 A.L.R.2d 638.

Propriety and prejudicial effect of instructions referring to the degree or percentage of contributory negligence necessary to bar recovery, 87 A.L.R.2d 1391.

Liability of pedestrian to another pedestrian injured as result of collision between them on sidewalk, 88 A.L.R.2d 1143.

Contributory negligence of mentally incompetent or mentally or emotionally disturbed person, 91 A.L.R.2d 392.

Last clear chance in actions by motor vehicle passenger against host-driver, 95 A.L.R.2d 617.

Liability of owner or operator of automobile for injury to one assisting in extricating or starting his stalled or ditched car, 3 A.L.R.3d 780.

Contributory negligence or assumption of risk as defense to action for personal injury, death, or property damage resulting from alleged breach of implied warranty, 4 A.L.R.3d 501.

Rescue doctrine: negligence and contributory negligence in suit by rescuer against rescued person, 4 A.L.R.3d 558.

Comparative negligence rule where misconduct of three or more persons is involved, 8 A.L.R.3d 722.

Applicability of last clear chance doctrine to collisions between motor vehicles crossing at intersection, 20 A.L.R.3d 124.

Applicability of last clear chance doctrine to intersectional collision between motor vehicles meeting from opposite directions, 20 A.L.R.3d 287.

Contributory negligence of spouse or child as bar to recovery of collateral damages suffered by other spouse or parent, 21 A.L.R.3d 469.

Premises liability: proceeding in the dark as contributory negligence, 22 A.L.R.3d 286.

Premises liability: proceeding in the dark along outside path or walkway as contributory negligence, 22 A.L.R.3d 599.

Premises liability: proceeding in the dark on outside steps or stairs as contributory negligence, 23 A.L.R.3d 365.

Premises liability: proceeding in the dark across exterior premises as contributory negligence, 23 A.L.R.3d 441.

Premises liability: proceeding in the dark along inside hall or passageway as contributory negligence, 24 A.L.R.3d 388.

Premises liability: proceeding in the dark on inside steps or stairs as contributory negligence, 25 A.L.R.3d 446.

Contributory negligence or assumption of risk of one injured by firearm or air gun discharged by another, 25 A.L.R.3d 518.

Third person's participating in or encouraging drinking as barring him from recovering under civil damage or similar acts, 26 A.L.R.3d 1112.

Liability of motorist colliding with person engaged about stalled or disabled vehicle on or near highway, 27 A.L.R.3d 12.

Premises liability: proceeding in the dark across interior premises as contributory negligence, 28 A.L.R.3d 605.

Admissibility of evidence of habit, customary behavior, or reputation as to care of pedestrian on question of his care at time of collision with motor vehicle giving rise to his injury or death, 28 A.L.R.3d 1293.

The doctrine of comparative negligence and its relation to the doctrine of contributory negligence, 32 A.L.R.3d 463.

Applicability of last clear chance doctrine to collision between moving and stalled, parked, or standing motor vehicle, 34 A.L.R.3d 570.

Modern status of the rule absolving a possessor of land of liability to those coming thereon for harm caused by dangerous physical conditions of which the injured party knew and realized the risk, 35 A.L.R.3d 230.

Pilot's contributory negligence or assumption of risk as defense in action for his injuries or death resulting from airplane accident, 35 A.L.R.3d 614.

Tort liability of public schools and institutions of higher learning for accident occurring during school athletic events, 35 A.L.R.3d 725.

Tort liability of public schools and institutions of higher learning for accidents associated with chemistry experiments, shopwork, and manual or vocational training, 35 A.L.R.3d 758.

Right of action for injury to or death of woman who consented to illegal abortion, 36 A.L.R.3d 630.

Tort liability of public schools and institutions of higher learning for accidents occurring during use of premises and equipment for other than school purposes, 37 A.L.R.3d 712.

Retrospective application of state statute substituting rule of comparative negligence for that of contributory negligence, 37 A.L.R.3d 1438.

Contributory negligence as defense to action for injury or damage caused by accidental starting up of parked motor vehicle, 43 A.L.R.3d 930.

Products liability: contributory negligence or assumption or risk as defense under doctrine of strict liability in tort, 46 A.L.R.3d 240.

Anti-hitchhiking laws; construction and effect in action for injury to hitchhiker, 46 A.L.R.3d 964.

Imputation of servant's or agent's contributory negligence to master or principal, 53 A.L.R.3d 664.

Imputation of contributory negligence of servant or agent to master or principal, in action by master or principal against another servant or agent for negligence in connection with his duties, 57 A.L.R.3d 1226.

Liability or recovery in automobile negligence action as affected by absence on insufficiency of lights on parked or standing motor vehicle, 61 A.L.R.3d 13.

Permitting child to walk to school unattended as contributory negligence of parents in action for injury to or death of child, 62 A.L.R.3d 541.

Liability or recovery in automobile negligence action arising out of collision or upset as affected by operation of vehicle without front lights, or with improper front lights, 62 A.L.R.3d 560.

Liability or recovery of automobile negligence action arising out of collision or upset as affected by operation of vehicle without or with improper taillights or rear reflectors, 62 A.L.R.3d 771.

Liability or recovery in automobile negligence action arising out of collision or upset as affected by operation of vehicle without, or with improper, clearance, load, or similar auxiliary lights, 62 A.L.R.3d 844.

Contributory negligence allegedly contributing to cause of injury as defense in Civil Damage Act proceeding, 64 A.L.R.3d 849.

Liability for injury or death of participant in theatrical performance or spectacle, 67 A.L.R.3d 451.

Modern development of comparative negligence doctrine having applicability to negligence actions generally, 78 A.L.R.3d 339.

Judicial adoption of comparative negligence doctrine as applicable retrospectively, 78 A.L.R.3d 421.

Liability of swimming facility operator for injury to or death of diver allegedly resulting from hazardous condition in water, 85 A.L.R.3d 750.

Choice of law as to application of comparative negligence doctrine, 86 A.L.R.3d 1206.

Liability to spectator at baseball game who is hit by ball or injured as a result of other hazards of game, 91 A.L.R.3d 24.

Automobile occupant's failure to use seat belt as contributory negligence, 92 A.L.R.3d 9.

Nonuse of seatbelt as reducing amount of damages recoverable, 95 A.L.R.3d 239, 62 A.L.R.5th 537.

Medical malpractice: patient's failure to return, as directed, for examination or treatment as contributory negligence, 100 A.L.R.3d 723.

Motor vehicle passenger's contributory negligence or assumption of risk where accident resulted from driver's drowsiness, physical defect, or illness, 1 A.L.R.4th 556.

Evidence of automobile passenger's blood-alcohol level as admissible in support of defense that passenger was contributorily negligent or assumed risk of automobile accident, 5 A.L.R.4th 1194.

Applicability of comparative negligence doctrine to actions based on strict liability in tort, 9 A.L.R.4th 633.

Effect of adoption of comparative negligence rules on assumption of risk, 16 A.L.R.4th 700.

Modern trends as to contributory negligence of children, 32 A.L.R.4th 56.

Patient's failure to reveal medical history to physician as contributory negligence or assumption of risk in defense of malpractice action, 33 A.L.R.4th 790.

Liability to one struck by golf ball, 53 A.L.R.4th 282.

Products liability: sufficiency of evidence to support product misuse defense in actions concerning electrical generation and transmission equipment, 55 A.L.R.4th 1010.

Products liability: sufficiency of evidence to support product misuse defense in actions concerning lawnmowers, 55 A.L.R.4th 1062.

Liability for injury incurred in operation of power golf cart, 66 A.L.R.4th 622.

Comparative fault: calculation of net recovery by applying percentage of plaintiff's fault before or after subtracting amount of settlement by less than all joint tort-feasors, 71 A.L.R.4th 1108.

Products liability: contributory negligence or assumption of risk as defense in negligence action based on failure to provide safety device for product causing injury, 75 A.L.R.4th 443.

Products liability: contributory negligence or assumption of risk as defense in action for strict liability or breach of warranty based on failure to provide safety device for product causing injury, 75 A.L.R.4th 538.

Rescue doctrine: applicability and application of comparative negligence principles, 75 A.L.R.4th 875.

Liability of proprietor of private gymnasium, reducing salon, or similar health club for injury to patron, 79 A.L.R.4th 127.

Comparative negligence: judgment allocating fault in action against less than all potential defendants as precluding subsequent action against parties not sued in original action, 4 A.L.R.5th 753.

Sufficiency of evidence to raise last clear chance doctrine in case of automobile collision with pedestrian or bicyclist - modern cases, 9 A.L.R.5th 826.

Modern status of sudden emergency doctrine, 10 A.L.R.5th 680.

Intentional provocation, contributory or comparative negligence, or assumption of risk as defense to action for injury by dog, 11 A.L.R.5th 127.

Applicability of comparative negligence principles to intentional torts, 18 A.L.R.5th 525.

Liability for injury to customer or patron from amusement device maintained by store or shopping center for use of customers, 40 A.L.R.5th 807.

Failure to use or misuse of automobile child safety seat or restraint system as affecting recovery for personal injury or death, 46 A.L.R.5th 557.

Comparative negligence of driver as defense to enhanced injury, crashworthiness, or second collision claim, 69 A.L.R.5th 625.

Comparative negligence, contributory negligence, and assumption of risk in action against owner of store, office, or similar place of business by invitee falling on tracked-in water or snow, 83 A.L.R.5th 589.

Liability to spectator at baseball game who is hit by ball or injured as result of other hazards of game - failure to provide or maintain sufficient screening, 82 A.L.R.6th 417.

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