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LENDERMAN v. HAYNIE et al.
GEORGIA POWER CO. v. HAYNIE et al.
34923.
34904.
Action for damages. Before Judge Edmondson. Hall Superior Court. September 5, 1953.
SUTTON, C. J.
1. Where one of the joint defendants was alleged to have furnished a family-purpose automobile to his daughter, with knowledge that the automobile was equipped with defective steering gear and that his daughter was an inexperienced driver, and where it was alleged that this defendant's daughter while driving said automobile suddenly turned it from its course without apparent necessity to do so and struck a power pole, injuring a guest riding in the automobile, a question was raised for a jury's determination as to whether this defendant's alleged conduct amounted to gross negligence.
2. Where it was alleged that the other joint defendant had located one of its power poles on the sidewalk against the curb, and within six inches from the traveled portion of a city street, and had suspended a 400-pound electric transformer from a weak and rotten cross-arm near the top of the pole without any fastenings, so that the transformer would fall upon any vehicle traveling on the same side of the street and striking the pole, a jury question was raised as to whether the defendant power company, in the exercise of ordinary care, should have foreseen or anticipated that someone driving an automobile would strike the pole, as the other defendant's daughter did, thereby injuring persons using the street.
3. The petition set out a cause of action against both defendants, and the court did not err in overruling the general demurrers to the petition.
Mrs. Carl H. Haynie brought an action for the death of her daughter, Martha Sue Haynie, against Ellis L. Lenderman and Georgia Power Company. The plaintiff made substantially the following allegations in her petition: The defendant Lenderman was the owner of a Cadillac automobile which was kept and maintained for the comfort, pleasure, and convenience of his family, and which he provided as a family-purpose car. Lenderman allows his daughter Betty, who resides in his home and is 14 years of age, to use said automobile for her comfort, pleasure, and convenience on the same basis as the other members of his family. On October 3, 1952, at about 1O:30 p.m., Betty Lenderman was driving said automobile south along North Green Street in Gainesville, Georgia, for her own pleasure and convenience and with the defendant Lenderman's express authority and consent. The plaintiff's daughter, Martha Sue Haynie, was then a guest in said automobile. The direction of said automobile could not have been properly controlled and it could not have been properly guided by Betty Lenderman because its steering gear was loose, the bushings on the front wheels were worn, the king pins were loose and worn, the front wheels were loosely attached to the front axle, and the steering gear was loosely attached to the wheels, which defective condition was well known to the defendant Lenderman prior to and on October 3, 1952. Lenderman, knowing of said defective and unsafe condition, permitted his daughter to drive said automobile which he furnished to her as a family-purpose car, and permitted his daughter to carry the plaintiff's daughter, who had no knowledge of said defective condition, as a passenger.
The defendant power company owns and maintains equipment for the transmission of electricity in the City of Gainesville, Georgia, and on October 3, 1952, owned and improperly maintained a large pole on which was improperly located a large power transformer, on North Green Street in said city. North Green Street is usually frequented by a large number of vehicles and pedestrians and is used by city traffic and by persons traveling north on U. S. Highway No. 129 and State Highway No. 136; and on nights following sporting events and civic meetings at Gainesville City Park and Civic Building, traffic on North Green Street is congested, which was well known by both defendants. Vehicles on North Green Street in the vicinity of the said power were frequently operated negligently and unlawfully, and the defendant power company could and should, in the exercise of ordinary care, have foreseen such negligent operation, due to the heavy traffic on said street at said point. Said pole and transformer were kept, placed, and improperly maintained by the defendant power company on the west side of North Green Street, at a point west of the intersection of Glennwood Drive with North Green Street, on the sidewalk, against the curb, and so close to the traveled portion of North Green Street as to constitute an obstruction endangering persons properly using said street for vehicular traffic, and to interfere with and obstruct the use of said street by the traveling public. The transformer was suspended on a cross-arm near the top of said pole and about 40 feet from the ground, and it weighed about 400 pounds. The pole was located 49 feet south of Glennwood Drive and against the curb on the west side of North Green Street, within 6 inches of the traveled portion thereof. Many vehicles, including school busses, trucks, and Cadillacs, which travel along North Green Street, have bodies which protrude more than six inches from the outside of the wheels and would strike said pole while the wheels of such vehicles were in the traveled portion of said street, and this was known to both defendants. By reason of the congestion at said point on North Green Street, vehicles frequently use the extreme west side of said street as a traffic lane, which was known to the defendants, and the defendant power company in the exercise of ordinary care should have foreseen that said pole would be struck by vehicles because it was so near to the street.
The transformer was not bolted or fastened to said pole or cross-arm. The pole and cross-arms upon which the transformer was located were weak, rotten, and decayed on October 3, 1952, and several months prior thereto, and the defendant power company should have known of this condition in the exercise of ordinary care, as such condition could have been discovered by a casual inspection. The transformer was located on the north side of the pole, towards vehicles moving south on the west side of said street, so as to fall onto any such vehicle which struck the pole.
When Betty Lenderman was west of the intersection of Glennwood Drive on North Green Street, and while driving her father's automobile at more than 25 miles per hour, she suddenly and violently turned said vehicle to the right without any warning to the plaintiff's daughter and, due to the turning of the vehicle to the right and its said defective condition, struck said pole. Betty Lenderman was young and was inexperienced in the operation of said automobile, which was known to the defendant Lenderman, and she could not control the direction of said automobile, due to its defective condition and sudden turning.
When said automobile struck the rotten and decayed pole of the defendant power company, the large transformer suspended on the pole fell to the hood and windshield of said automobile, mashing the hood and breaking the windshield. From the impact of the automobile with the pole and from the falling of said transformer with iron arms attached, the plaintiff's daughter was thrown against the windshield of said automobile, was struck by the iron arms of the transformer and the glass from the windshield, and was injured and killed. At said time and place North Green Street was being used by a large number of vehicles and pedestrians leaving a public gathering held at the Civic Building on North Green Street, in addition to the usual traffic on said street.
The defendant Lenderman was grossly negligent in the following particulars: (1) in permitting his minor daughter to drive and operate said automobile when he knew that its direction could not properly be controlled due to its defective condition; (2) in furnishing said automobile with its defective steering condition to his daughter as a family-purpose car; (3) in carrying the plaintiff's daughter as a guest in said automobile when he knew of its defective and unsafe condition; (4) in carrying the plaintiff's daughter as a guest in said automobile in its defective condition at a speed of more than 25 miles per hour; (5) in permitting his daughter to drive said automobile in congested traffic while she was young, inexperienced, and incapable of driving safely in such traffic.
The defendant Lenderman, acting by and through his daughter Betty, was grossly negligent as follows: (1) in operating a motor vehicle at more than 25 miles per hour upon a public street in the City of Gainesville which was frequented by heavy traffic; (2) in not having said vehicle under control; (3) in not steering said automobile away from and around said pole; (4) in failing to steer said automobile to the left to avoid striking said pole; (5) in striking said pole with said vehicle; and (6) in operating said automobile at said time and place so as to endanger the life, limb, and property of the plaintiff's daughter and others lawfully on said street at said time and place, by turning the automobile suddenly to the right into said power pole.
The defendant power company was negligent in the following respects: (1) in erecting and improperly maintaining a pole, approximately 18 inches in diameter, so near to the traveled portion of North Green Street that it constituted an obstruction to persons using said street; (2) in erecting and improperly maintaining said pole so near to North Green Street as to interfere with and obstruct the use of said street by the traveling public; (3) in suspending a large, metal transformer, weighing 400 pounds, upon a power pole located so near to North Green Street that it constituted a hazard to the traveling public; (4) in suspending said transformer upon a pole so close to said street that it would fall upon those using the street if it fell for any reason; (5) in suspending said transformer upon a pole that was weak, decayed, rotten, and was improper to prevent said transformer from falling and injuring persons and property; (6) in placing said transformer, known to be a dangerous instrumentality by the defendant but not known to be dangerous by the plaintiff's daughter, at a position on said pole which was in disregard of the safety of users of the street; (7) in suspending said transformer on said pole; (8) in failing to fasten said transformer to said pole or cross-arm by bolt or otherwise so as to prevent it from falling; (9) in failing to make inspection of the pole and transformer to determine their dangerous condition and location; (10) in allowing said pole to become weak, rotten, and decayed so that it was insufficient to support said transformer; and (11) in suspending said transformer from said pole which was located against the curb on North Green Street and at a place where automobiles driven on North Green Street could strike said pole without leaving the street.
It was further alleged that the concurrent acts of negligence of the defendant Lenderman and the defendant power company were the direct and proximate cause of the death of the plaintiff's daughter; that the plaintiff's daughter was in the exercise of due care and diligence at the time of her injury and death, and could not have avoided the negligence of the defendants; and that the plaintiff's daughter, Martha Sue Haynie, was 15 years of age at the time of her death and left no husband or child surviving her.
The defendant Lenderman and the defendant power company brought separate bills of exceptions to this court, and each assigns error upon the overruling of general demurrers to the petition.
1. The allegations of the petition show that the defendant Lenderman provided his daughter Betty with an automobile, as a family-purpose car, which had defective steering gear, and that Lenderman's daughter was an inexperienced driver. Betty Lenderman was driving the automobile south along North Green Street at more than 25 miles per hour in congested traffic when she suddenly turned the car to the right. Because of the defective condition of the automobile and the sudden turn, Betty Lenderman was unable to control the direction of the automobile, and it struck the pole owned and maintained by the defendant power company. These alleged facts were sufficient to support the allegation of gross negligence as against the defendant Lenderman. Where the defendant furnishes an automobile known to be defective to a driver known to be incompetent, who suddenly turns the automobile from its course while driving it, without apparent necessity to do so, and thereby injures a guest of the defendant, a question is raised for determination by a jury as to whether such conduct amounts to gross negligence. See Rowe v. Camp, 45 Ga. App. 794 (165 S. E. 894); Duncan v. Ross, 56 Ga. App. 394 (192 S. E. 638); Pickleseimer v. Duke, 41 Ga. App. 614 (154 S. E. 457); Frank v. Horovitz, 52 Ga. App. 651 (183 S. E. 835); Sumter Milling & Peanut Co. v. Singletary, 79 Ga. App. 111 (53 S. E. 2d 181).
The defendant Lenderman's contention that the petition must be construed as showing that his automobile struck the defendant's pole while in the traveled portion of the street may be meritorious, but it does not follow that he was not chargeable with gross negligence. If, by his failure to exercise slight care, the defendant could have foreseen or anticipated that some injury might naturally and probably occur, then his gross negligence may be found by a jury to have contributed to the injury which did occur, although the defendant could not have foreseen the exact manner in which the injury occurred. Hertz Driv-Ur-Self Stations v. Benson, 83 Ga. App. 866, 875 (3) (65 S. E. 2d 191); Mitchell v. Schofield's Sons Co., 16 Ga. App. 686 (6), 690 (85 S. E. 978); Williams v. Grier, 196 Ga. 327, 337 (26 S. E. 2d 698). This also applies to the defendant Lenderman's contention that he could not have anticipated that a 400-pound transformer was insecurely fastened to the top of the pole which his daughter struck. The court did not err in overruling the defendant Lenderman's general demurrers to the petition.
2. The allegations of the petition show that the defendant power company owned and maintained a power pole, about eighteen inches in diameter, at a certain place on the west side of North Green Street in Gainesville, Georgia. An electric transformer weighing 400 pounds was suspended on a cross-arm near the top and on the north side of the pole, about 40 feet above the ground. The transformer was not bolted or fastened to the hole or the cross-arm, but was suspended from a cross-arm which had become weak, rotten, and decayed. The pole was located on the sidewalk, against the curb, and within six inches of the traveled portion of the street, so close that vehicles such as school buses, trucks, and late-model automobiles, which have bodies extending beyond the wheels for more than six inches, could strike the pole while the wheels of such vehicles were in the traveled portion of the street.
The defendant power company contends that its pole was not located so as to be an unreasonable obstruction to, or a substantial interference with, traffic lawfully using the street, and cites in support of its contentions South Georgia Power Co. v. Smith, 42 Ga. App. 100 (155 S. E. 80); Townsend v. Georgia Power Co., 44 Ga. App 132 (160 S. E. 712); Burd v. City of Atlanta, 52 Ga. App. 681 (184 S. E. 412); and Stallings v. Georgia Power Co., 67 Ga. App. 435 (20 S. E. 2d 776).
But the negligence alleged on the part of the defendant power company is not only in placing its pole so close to the traveled portion of the street, but also in suspending the 400-pound transformer from a weak and rotten cross-arm at the top of the pole with no fastenings. In the expression used in South Georgia Power Co v. Smith, supra, this is a case of the "negligent maintenance of an inherently dangerous condition in close proximity to the traveled portion of a highway, . . . which, by reason of the likelihood of injury therefrom to travelers along the highway, might constitute the proximate cause of an injury to a traveler running into it." In Lyons v. Georgia Power Co., 78 Ga. App. 445 (51 S. E. 2d 459), both the majority and dissenting opinions seem to concede that there was a question for a jury as to whether the power company was negligent, with respect to a traveler on the street, in placing a pole near the traveled portion of the street and in failing to securely fasten the transformer to the pole. The difference of opinion in that case was as to whether the power company could have anticipated that the driver of the automobile in which the plaintiff was riding would proceed at 40 miles per hour over a rough and muddy street at night, swerving to avoid the many ruts and holes in the street, and eventually striking the pole. The court held that the causal connection between any negligence on the part of the power company and the plaintiff's injuries was broken by the intervening acts of the driver of the automobile.
The allegations of the present petition show that the pole was located six inches from the traveled portion of the street, and that it could have been struck by any of certain vehicles lawfully using the street. The petition also alleges that the plaintiff was riding on the highway or street when it was congested with traffic, and, under such circumstances, a question for the determination of a jury was raised as to whether or not the defendant power company could have anticipated that someone using the street, either negligently or lawfully, might strike the pole and cause the transformer to fall. It is alleged that the transformer would have fallen onto any southbound vehicle on North Green Street which struck the pole.
3. The petition set out a case of contributing concurrent acts of negligence against both defendants, and the court did not err in overruling the general demurrers to the petition.
Judgments affirmed in both cases. Felton and Quillian, JJ., concur.
B. Frank Whelchel, Telford, Wayne & Smith, contra.
Wheeler, Robinson & Thurmond, for plaintiff in error. (Case No. 34923.)
Erwin, Nix, Birchmore & Epting, R. W. Smith, Jr., for plaintiff in error. (Case No. 34904.)
DECIDED JANUARY 14, 1954.
Saturday May 23 03:36 EDT


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