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PONDER v. MCKINZIE.
34988.
Action for damages. Before Judge Humphrey. Emanuel Superior Court. October 27, 1953.
CARLISLE, J.
1. The trial court did not err in overruling the special demurrers which called for information bearing solely on the question of contributory negligence, which is an affirmative defense and must be pleaded.
2. Under the allegations of the petition, it was for the jury to determine whether the two defendants were guilty of negligence in any of the particulars charged, and, if so, whether the concurrent negligence of the two defendants, or the separate acts of either, constituted the proximate cause or causes of the injury.
Mrs. Gertrude McKinzie brought an action for damages in the Superior Court of Emanuel County against Estus Averett of that county, trading as Averett Cab Service, and P. H. Ponder of Morgan County. The material allegations of her petition are substantially as follows: (1) The defendants have injured Mrs. McKinzie in the sum of $63,570. (2) Rufus Williams at the time of the collision was the agent, servant, and employee of P. H. Ponder, and (3) was acting within the scope of his employment. (4) At the time of the collision Thomas J. Coxwell was the agent, servant, and employee of Averett and was acting within the scope of his employment. (5) At the time of the collision and prior thereto, Mrs. McKinzie was dependent upon her son, Jack McKinzie, age 21, for support, and he during his lifetime contributed to her support. (6) In the collision her son lost his life, and the plaintiff, as his mother, brings this action for the full value of his life. The son left neither wife nor child surviving him. (7) On October 17, 1952, between 8 and 8:30 p.m., Jack McKinzie was riding "as a guest" in the taxicab belonging to Averett and driven by Coxwell. McKinzie had no control over the automobile. (8) On the date in question Williams had parked Ponder's truck on the paved surface of Highway 57 in Emanuel County, facing Kite, Georgia, and without leaving any room for any other vehicle to pass. The cab driven by Coxwell in which McKinzie was riding was also traveling toward Kite. (8a) The truck was parked on the highway at a point approximately 800 feet south of the Gumlog Road intersection and approximately 2.2 miles north of the city limits of Swainsboro and at a point just over the crest of a hill in a northerly direction, the direction in which the taxicab was traveling. Because of the presence of the hill, the lights on the taxicab could not reveal the presence of the truck until the taxicab had come over the crest of the hill and was within approximately 100 feet of the truck. (9) There were no lights or flares on the truck to notify the traveling public that it was parked on the highway, and the truck was left unguarded and without any person present to notify or signal the traveling public that it was parked on the highway. (10) Coxwell was driving the taxicab along the highway at a speed of 65 miles per hour, and ran into the parked truck, which collision resulted in McKinzie's death. (11) On the date in question, it was extremely cloudy and, in spite of this condition of the weather, Coxwell continued to drive the taxicab at the high and excessive rate of speed aforesaid. Because it was night and the visibility was poor, McKinzie could not detect the excessive speed of the taxicab until a few seconds before the collision. As the excessive speed of the taxicab became apparent to McKinzie, Ponder's truck, parked in the roadway ahead, became visible to him. He immediately cried out, "Look out for that truck," but nevertheless the taxicab rammed into the rear of the truck and caused his death. (12) Averett, by and through his agent, Coxwell, was grossly negligent and negligent per se in operating the taxicab in excess of 55 miles per hour in violation of the State law. He was grossly negligent in failing to keep a proper lookout ahead so as to detect the presence of vehicles in front of him, and in driving at an excessive rate of speed on an extremely cloudy night when his vision was impaired by weather conditions, and in failing to apply his brakes and to bring the taxicab to a stop before striking the parked truck. (13) Ponder was negligent in parking the truck on the highway without leaving any light on it and in leaving the truck parked on the highway unguarded and without any person to notify the traveling public of its presence. He was also negligent in failing to drive the truck onto the shoulder of the highway where it would not block traffic, and in parking the truck on the highway without displaying a red light on the rear of the truck which would be visible for 100 feet or more, and in failing to place flares near the truck or to give any other warning of the truck's presence on the highway. (14) The joint and concurrent acts of negligence
of the two defendants set out operated to produce and were the proximate cause of McKinzie's death, and McKinzie was free from any negligence contributing to his death. (15) The defendants jointly and concurrently brought about the negligence resulting in McKinzie's death. (16) The defendants, as joint tortfeasors, brought about the combination of negligence which jointly and concurrently resulted in McKinzie's death. (17) The several concurrent acts of negligence were the proximate cause of McKinzie's death. (18) The defendants and/or either of them could have easily foreseen or anticipated that, due to their joint and concurrent acts of negligence, the accident which did take place would likely occur as a result of such conduct, acts, and negligence of the defendants. (19) The defendants and/or either of them acting with ordinary prudence could have foreseen that the death could result from their combined, joint, and concurrent acts of negligence alleged. (20) At the time of his death McKinzie was 21 years of age and had a life expectancy of 40.75 years. (21) He was contributing at least $1,560 per year to the plaintiff's support and, in accordance with his life expectancy, would have contributed the amount sued for. (21a) Just prior to his death McKinzie was capable of earning and did earn $40 per week. (22) McKinzie suffered enumerated injuries in the collision which resulted in his death. (23) the following specific acts of negligence on the part of the defendants are alleged: Averett was grossly negligent as follows: (a) in operating the taxicab at an excessive rate of speed and at more than 55 miles per hour in violation of law; (b) in operating the taxicab at such excessive rate of speed at a time when he knew that it was extremely cloudy; (c) in failing to keep a proper lookout ahead to detect the presence of vehicles in front of him; (d) in driving the taxicab at such excessive rate of speed when his vision was impaired by weather conditions; (e) in failing to apply his brakes and to bring the taxicab to a stop before striking the parked truck. (24) Ponder was negligent: (a) in parking the truck on the paved surface of the highway, near the center line thereof, in violation of Code 68-314, which amounted to negligence per se; (b) in leaving the parked truck on the highway without any attendant; (c) in parking the truck on the highway without leaving sufficient room for another vehicle to pass; (d) in parking on the highway instead of on the shoulder of the highway; (e) in failing to leave any lights burning on the parked truck; (f) in failing to drive the truck onto the shoulder of the highway where it would not block traffic; (g) in parking the truck on the highway without displaying a red light on the rear of the truck; and (h) in failing to place flares near the truck or to give any other signal or warning of the truck's presence on the highway. (25) The aforesaid acts of negligence on the part of the defendants operated to produce and were the proximate cause of McKinzie's injuries and death, and the defendants jointly and concurrently brought about the acts of negligence which resulted in McKinzie's death.
Ponder's general and special demurrers to the petition, as finally amended, were overruled and lie has appealed for a review of that judgment.
1. By certain of his special demurrers, the defendant Ponder demands to know: (a) Why McKinzie had no control over the taxicab in which he was riding? (b) Where was McKinzie sitting in the taxicab just prior to the collision? (c) Was McKinzie asleep or awake just prior to the collision? (d) How long had the taxicab in which McKinzie was riding been traveling at 65 miles per hour? (e) What was the visibility and how far could objects have been seen in the road ahead at the time of the collision? (f) How far was McKinzie from the truck when it became visible to him?
The gist of the plaintiff's cause of action is the alleged negligence of the defendant Ponder and the alleged negligence of the defendant Averett, which combined to cause her son's death. The defendant Ponder by his special demurrers is not asking for information which would make the charges of negligence against him less vague, less uncertain, or less ambiguous. On the other hand, he is asking for information which bears only upon the questions of McKinzie's contributory negligence and whether, in the exercise of ordinary care, he could have avoided the defendant's negligence after it became apparent to him or in the exercise of ordinary care should have become apparent to him. See, in this connection, Crandall v. Sammons, 62 Ga. App. 1, 4 (7 S. E. 2d 575); Russell v. Bayne, 45 Ga. App. 55, 56 (163 S. E. 290), and citations. In an action for negligence brought by a guest against his host and a third party tortfeasor, it is not incumbent upon the plaintiff to negative his own negligence, or to show that he exercised due care for his own safety. Those are matters for affirmative defense and must be pleaded. Hardwick v. Figgers, 26 Ga. App. 494 (106 S. E. 738); Sims v. Martin, 33 Ga. App. 486 (8) (126 S. E. 872); Pollard v. Hagan, 60 Ga. App. 581 (4 S. E. 2d 477). Good pleading requires only that the plaintiff plainly and concisely state the material ultimate facts on which the plaintiff depends for a recovery. The information asked for by the defendant's special demurrers is not peculiarly within the plaintiff's knowledge, and her failure to furnish this information, which is equally within the grasp of the defendant, does not have the effect of not putting the defendant on notice as to how to prepare his defense. Riley v. Wrightsville & Tennille R. Co., 133 Ga. 413, 421 (65 S. E. 890, 24 L. R. A. (NS) 379, 18 Ann. Cas. 208). It follows that the trial court did not err in overruling the special demurrers calling for the information indicated above.
2. Counsel for the defendant Ponder insists that, when the petition is construed most strongly against the plaintiff, it appears as a matter of law that the alleged negligence of Ponder's servant in leaving Ponder's truck parked on the highway without lights did not concur in producing the death of the plaintiff's son, as under such a construction of the petition, it is shown that the sole proximate cause of the death of the son was the alleged negligence of the defendant Averett's servant Coxwell in driving the taxicab at an excessive speed under the conditions alleged, and in failing to keep a proper lookout ahead and failing to apply the brakes of the taxicab so as to bring the taxicab to a stop before striking the truck.
"There may be more than one proximate cause of an injury. Shermer v. Crowe, 53 Ga. App. 418 (3) (186 S. E. 224). It is no defense to an action for an injury resulting from negligence that the negligence of a third person contributed to cause the injury, if the negligence of the defendant was an efficient cause without which the injury would not have occurred. Rollestone v. Cassirer, 3 Ga. App. 161, 173 (59 S. E. 442). 'In case two or more near and preponderating negligent causes are found to have become effectuated in the same injurious result, the question as to which of the two or more negligent actors is to be held responsible is determined usually in this wise: if the two negligent acts are so related that the first could not probably have resulted in injury if the other had not occurred, and the latter amounts to such a preponderating cause that it probably would have produced the injury even if the first negligence had not occurred, or if the author of the latter negligence, with the intermediate effects of the former negligence consciously before him, is guilty of a new negligent act which preponderates in producing the injurious effect, we say that the first negligent cause is not the proximate cause, that the intervention of the latter negligence breaks the chain of causal connection so far as juridic purposes are concerned. But if two negligent causes stand so related that neither would have produced a harmful result but for the other, and both of them consist of such acts as, according to the general course of human probabilities, produce some such injurious effect as that which did in fact ensue--i.e., if both the negligent causes are material factors in producing the injury, and are closely connected with it, and one has not so intervened as to make it the preponderating cause, we say that the two negligent actors are guilty of concurring negligence.' Atlantic Coast Line R. Co. v. Daniels, 8 Ga. p. 775, 780 (70 S. E. 203). 'The proximate cause of an injury may be two separate and distinct acts of negligence acting concurrently in causing the injury. [Citations.] While the causal connection between an act of negligence and a resulting injury is not broken by an intervening act which immediately causes the injury where this act can, in the exercise of due care, be foreseen by the original wrongdoer, the negligence in the intervening act may concur with the negligence of the original wrongdoer in causing the injury, and the perpetrators of both acts may be joint tortfeasors. Allyn & Bacon Book Publishers v. Nicholson, 58 Ga. App. 729 (199 S. E. 771)." Callahan v. Cofield, 61 Ga. App. 780, 781 (7 S. E. 2d 592).
It is alleged in the petition that the plaintiff's son met his death as the result of certain specified acts of negligence on the part of the defendant Ponder's servant and on the part of the defendant Averett's servant. It was for the jury to determine whether the two defendants were guilty of negligence in any of the particulars charged, and, if so, whether the concurrent negligence of the two defendants, or the separate acts of either, constituted the proximate cause or causes of the injury.
While in Andrews v. Kinsel, 114 Ga. 390 (2) (40 S. E. 300, 88 Am. St. R. 25), it was held in effect that, where there has intervened between the defendant's negligence and the injury an independent illegal act of a third person producing the injury, without which it would not have occurred, such independent criminal act should be treated as the proximate cause, insulating and excluding the negligence of the defendant, it has been held in Williams v. Grier, 196 Ga. 327, 338 (26 S. E. 2d 698), that this rule does not apply if the defendant had reasonable grounds for apprehending that such criminal act would be committed. Under the allegations of the petition, there was a duty upon each of the defendants to anticipate that others like himself would disobey the traffic laws and regulations, as each defendant is charged with one or more violations of the traffic laws and regulations. Smith v. American Oil Co., 77 Ga. App. 463, 499 (49 S. E. 2d 90); Williams v. Grier, supra, and citations.
As we have stated, each of the defendants, under the allegations of the petition, should have anticipated that some injury might occur as a result of his own negligence. It follows that the petition stated a cause of action against the defendant Ponder for negligence in parking the truck on the highway so as to obstruct traffic and without lights to warn approaching traffic of the presence of the truck on the highway. The weather is alleged to have been cloudy, and the truck was parked just over the crest of a hill so that the driver of the taxicab could not see the truck until he was within 100 feet of it. We can not say as a matter of law that the negligence of the taxicab driver charged in the petition was the sole proximate cause of the alleged injury.
The allegations of the petition do not bring this case within the class of cases exemplified by Brinson v. Davis, 32 Ga. App. 37 (122 S. E. 643).
From what has been said, it follows that the trial court did not err in overruling the general demurrer.
Williams & Smith, Price, Spivey & Carlton, contra.
Rountree & Rountree, for plaintiff in error.
DECIDED MARCH 10, 1954 -- REHEARING DENIED MARCH 30, 1954.
Saturday May 23 03:47 EDT


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