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PEGGY ANN OF GEORGIA INC. v. SCOGGINS et al.
33857.
Action for damages; from Bartow Superior Court-- Judge Paschall. September 28, 1951.
WORRILL, J.
Under the allegations of the petition as amended, the sole proximate cause of the injury and death of the person, on account of which the present action was brought, was the negligence of the defendant bus company and its driver; and the court erred in overruling the general demurrer of the other defendant who was jointly sued.
James H. Scoggins, James F. Scoggins, Douglas R. Scoggins, Russell L. Scoggins, and Mrs. M. M. Adams filed an action in the Superior Court of Bartow County, Georgia, against Southeastern Greyhound Lines Inc., Peggy Ann of Georgia Inc. and two individuals, later dismissed as defendants, seeking to recover damages for the alleged homicide of Mrs. Beulah Scoggins. The petition as amended alleged the following: James H. Scoggins is the surviving husband and the other plaintiffs are the surviving children of the deceased. On the night of January 23, 1951, Mrs. Beulah Scoggins was riding as a fare-paying passenger on a bus owned and operated by Southeastern Greyhound Lines Inc., and was being transported by it on one of its busses to Summerville, Georgia. The bus was stopped at what is commonly known and referred to as Peggy Ann Bus Stop, located about six miles north of Cartersville, in Bartow County, Georgia, which bus stop is designated by the Southeastern Greyhound Lines Inc. in the operation of its bus lines as a "rest stop." When the said bus was stopped at the Peggy Ann Bus Stop, it was approximately 10 o'clock at night and dark. Peggy Ann of Georgia Inc, was the operator of the said stop, and as such conducted the business of selling bus tickets, food, drink, and nourishment to the passengers of the Southeastern Greyhound Lines Inc., and generally conducted what is known and referred to as a bus station and rest stop, at which the bus company took on and discharged passengers in the conduct of its business and in the conduct of the business of Peggy Ann of Georgia Inc. The approaches to the said bus stop consist of a sharp incline on both the north and south approaches thereto; and on the date alleged the driver of the bus operated by the bus company approached the stop by the south approach thereto, and drove the said bus up the approach and parked the same, announcing to the said Mrs. Beulah Scoggins and the other passengers therein that the bus would be stopped at this point for a rest stop. Mrs. Scoggins, along with some of the other passengers on the bus, remained in her seat upon being told by the said driver that the bus would be parked only for a few moments. The driver of the bus immediately left the same and departed therefrom, leaving it standing on the said approach and unattended by any of the said defendants or any agent or employee thereof and unattended by the said driver. Since the approaching driveway from the south is on a steep incline downward from the rest stop, and the approaching driveway from the north is on a steep incline downward from the rest stop, the whole parking area was on a steep slope in a generally northern direction or a generally southern direction, and this defendant, although inviting the bus company and its driver and the said passengers, including Mrs. Scoggins, to park on the said driveway, failed to fulfill its legal duty to provide a level and safe parking area for the said business invitees. Shortly after the bus was left unattended, and without any warning to the passengers thereon it began to roll backward down the steep approach leading to the bus stop on the south side thereof, and at a time when the bus was gaining momentum, was nearing a street embankment, and was heading backward in a direction over and off of the said embankment and onto and into U. S. Highway 41, which is a heavily traveled highway in said county and is continuously used by heavy tractor and trailer trucks operating at high speed thereon. When the said Mrs. Scoggins was faced with a sudden peril under the conditions above alleged, she attempted to remove herself from the said bus and to a point of safety by jumping from the bus, and at the instance and on the instructions from the driver of the bus she did jump from the bus to the ground, sustaining injuries from which she afterwards died.
The brakes on the bus owned and operated by the said bus company at said time and place were in a defective condition, in that they would not and did not operate with sufficient effectiveness to hold the bus in a firm standing position while it was parked on the incline. The defective condition of the brakes was concealed and invisible to the said Mrs. Scoggins, and she did not know and could not have known by the exercise of ordinary care of the defective condition of the brakes. The driver of the bus, at the said time and place, Julius Cecil Newsome, was an employee of the defendant bus company, and was within the scope of his employment at the time and place alleged. Mrs. Scoggins and the other passengers were, at the time and place herein referred to, all business invitees of the defendant Peggy Ann of Georgia Inc. because it was holding out to the said bus company and its driver and all of its passengers, including Mrs. Scoggins, a standing invitation to stop the bus on the said dangerously steep incline (as there was no other safe place provided for stopping and patronizing its place of business), to get out and come in and patronize the place, use its facilities and buy its food and beverages, and it invited any of the passengers who did not care to get out and go into the place of business, to remain on the bus, as did Mrs. Scoggins, until the other passengers could go in and patronize the business and return to the bus, all to the profit and advantage of Peggy Ann of Georgia Inc., it being impracticable for it to have the patronage of those who wanted to go into the place of business without leaving in the bus and protecting on the slope those passengers who did not wish to get out of the bus and go into and patronize the place. This defendant, by so inviting the said Mrs. Scoggins and the other passengers in the bus, and inviting the said motor carrier and its driver to stop and park the bus at the place where it stopped and parked, brought about and created a dangerous and hazardous situation, which, together with the action of the driver of the bus in stopping and parking at the said place, constituted joint and concurring acts of negligence resulting in the injury and death of the said Mrs. Scoggins. As the owner and operator of the said lunch room and rest stop, it was under the duty to Mrs. Scoggins and the other passengers to anticipate that the said bus, by reason of its defects or negligent handling by the driver thereof, or by intervention of third parties, might under the force of gravity roll down the steep incline and injure or kill the said Mrs. Scoggins and other passengers on the said bus. The injury and death of Mrs. Scoggins could and ought to have been anticipated by Peggy Ann of Georgia Inc. because of the very obviously dangerous situation which it was creating and maintaining in inviting the said bus company and its driver to park the bus on the said dangerous slope without any protection against its rolling down the slope, as in fact it did. It was under the duty to protect Mrs. Scoggins and the other invited passengers on the bus from the dangerous situation which it created, and it failed to make any provision to guard them from the dangerous effects of the acts and omissions of it. If it had undertaken to provide for their protection, it did not properly supervise the said protection or cause the bus company to protect the business invitees from injury and death by reason of the bus rolling down the steep grade. All of the hereinabove mentioned acts and omissions of Peggy Ann of Georgia Inc. constituted negligence, and together with the acts and omissions as hereinabove alleged of the bus company, constituted joint and concurrent acts of negligence, and together were the proximate cause of the injury and death of the said Mrs. Scoggins.
The bus company furnished what is commonly known and referred to as "scotch blocks" to Peggy Ann of Georgia Inc., for the purpose of placing them under the wheels of buses when parked on the steep incline as aforesaid, on its premises so as to insure that the said buses would not roll down the incline and would remain in a firm standing position thereon. At the time of the injury and death of Mrs. Scoggins neither of the defendants placed a proper "scotch block" under the wheels of the bus so as to keep it from rolling down the said approach; and if any "scotch block" was placed under the said wheels at the said time, it was improperly placed thereunder and did not keep the bus from rolling down the approach. Since the "scotch blocks" were furnished and were kept and maintained on the premises of Peggy Ann of Georgia Inc., it owed the duty to its invitees, the passengers on the bus, including Mrs. Scoggins, to see that they were used and were properly placed in a position under the bus so that it would not roll down the approach; and it further owed the duty of supervising the placing of the "scotch blocks" in a proper position so as to keep the bus from rolling down the approach while it was parked on the premises. The negligence of the defendants at the time and place alleged was the direct and proximate cause of the injury and death of Mrs. Scoggins. The acts of negligence of the defendants were joint and concurrent and as such constituted the direct and proximate cause of the injury and death aforesaid.
In addition to the acts of negligence hereinabove set out, the defendants were negligent as follows: The driver of the bus company was negligent, (a) in that he left the bus standing on a steep incline and approach to the bus stop while it was loaded with fare-paying passengers, including Mrs. Scoggins; (b) in that he left the bus, at the time and place alleged, and in the manner alleged, without a proper scotch or block under it which would hold the bus and would not permit it to roll backward; (c) in that at the time and place alleged he left the bus unattended while it was loaded with fare-paying passengers, including Mrs. Scoggins; (d) in stopping it at a place which was unsafe at a time when carrying fare-paying passengers, including Mrs. Scoggins.
The defendant, Peggy Ann of Georgia Inc., was negligent, (a) in that it failed to keep and maintain a safe and proper place for buses to take on and discharge passengers and for buses to stop while loaded with fare-paying passengers, including Mrs. Scoggins, and failed to keep, maintain and use "scotch blocks" for the purpose of scotching the bus on which Mrs. Scoggins was riding, so as to keep the same from rolling down the approach to the bus stop; (b) in failing to maintain a safe and proper place for the bus, on which Mrs. Scoggins was riding, to be parked while it was stopped at a rest stop and bus station.
The driver of the bus was further negligent, in that he failed to stop and park the bus in a safe and proper place while it was loaded with fare-paying passengers, including Mrs. Scoggins.
The bus company was further negligent in permitting the bus to be operated while its brakes were in a defective condition as alleged herein, and the driver was further negligent in stopping the bus and parking it in a place where the brakes, while in a defective condition, would not hold the bus in a firm standing position while loaded with fare-paying passengers, including Mrs. Scoggins. Peggy Ann of Georgia Inc. was further negligent in respect to all of the acts and omissions herein referred to.
The plaintiffs bring this suit as the surviving husband and all of the surviving children of Mrs. Beulah Scoggins, to recover the full value of her life. She was 60 years of age at the time of her death, in sound health, capable of performing and was performing her every duty as a mother and as a wife, and she had a life expectancy of 14.34 years under the Carlisle mortality tables.
The prayer was for process and for judgment in the sum of $50,000.
The exception here is to the judgment overruling the general demurrer of Peggy Ann of Georgia Inc.
(After stating the foregoing facts.) Under the allegations of the petition as amended, the deceased was clearly an invitee of Peggy Ann of Georgia Inc. who owed to her the duty of exercising ordinary care. Code, 105-401. The defendant in error further relies upon the principle of law stated in Atlantic Coast Line R. Co. v. Ouzts, 82 Ga. App. 36 (60 S. E. 2d, 770), that "It is a well-settled principle of law that where two concurrent causes operate directly in bringing about an injury, there can be a recovery against one or both of the responsible parties. The mere fact that the injury would not have been sustained had only one of the acts of negligence occurred will not of itself operate to define and limit the other act as constituting the proximate cause, for if both acts of negligence contributed directly and concurrently in bringing about the injury, they together will constitute the proximate cause." However, "The most generally accepted theory of causation is that of natural and probable consequences; and in order to hold the defendant liable, the evidence must show either that the act of the defendant complained of was the sole occasion of the injury, or that it put in operation other causal forces, such as were the direct, natural, and probable consequences of the original act, or that the intervening agency could have reasonably been anticipated or foreseen by the original wrong-doer." Kleinberg v. Lyons, 39 Ga. App. 774 (5) (148 S. E. 535); Williams v. Grier, 196 Ga. 327, 337 (26 S. E. 2d, 698). While one may be guilty of negligence, he is not liable if the intervening act of another muse be said to be the sole proximate cause. The rule is well stated in what is perhaps the leading case in Georgia on this subject ( Southern Railway Co. v. Webb, 116 Ga. 152, 42 S. E. 395, 59 L. R. A. 109): "While the general rule is that if, subsequently to an original wrongful or negligent act, a new cause has intervened, of itself sufficient to stand as the cause of the misfortune, the former must be considered as too remote, still if the character of the intervening act claimed to break the connection between the original wrongful act and the subsequent injury was such that its probable or natural consequences could reasonably have been anticipated, apprehended or foreseen by the original wrong-doer, the causal connection is not broken, and the original wrong-doer is responsible for all of the consequences resulting from the intervening act." In Bozeman v. Blue's Truck Line, 62 Ga. App. 7, 8 (7 S. E. 2d, 412), it was said: "In a situation where there is an act of negligence which is not operating and active at the time of another which follows, which latter act is caused by a breach of duty which the party guilty of the latter act of negligence owed to the injured party, the law will regard the latter act of negligence as the superseding cause, and will not look beyond it to the first act unless the person guilty of the first act of negligence could reasonably have anticipated that the second or intervening act might, not improbably but in the natural and ordinary course of things, follow his act of negligence, or 'if the misconduct is of such a character which, according to the usual experience of mankind, is calculated to invite or induce the intervention of some subsequent cause.' (Citing.)" In Seymour v. City of Elberton, 67 Ga. App. 426, 432 (20 S. E. 2d, 767), quoting from several authorities as to the extent to which a wrongdoer is bound to anticipate the consequences of his act, it was said: "In Bird v. St. Paul Fire Ins. Co., 224 N. Y. 47 (120 N. E. 86, 13 A. L. R. 875), Judge Cardozo said: 'The wrong-doer may be charged with those consequences and those only within the range of prudent foresight.' In Fowlkes v. Southern Ry. Co., 96 Va.
742, 745 (32 S. E. 464), the court held: 'Even if an injury has resulted in consequence of a certain wrongful act or omission, but only through or by means of some intervening cause, from which last cause the injury followed as a direct and immediate consequence, the law will refer the damage to the last or proximate cause, and refuse to trace it to that which was more remote.' In Milwaukee & St. Paul R. Co. v. Kellogg, 94 U. S. 469, 474 (24 L. ed. 256), the court said: 'But it is generally held that in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence or wrongful act and that it ought to have been foreseen in the light of the attending circumstances.' 22 R. C. L. 124. 'It has been held in many cases that a wrongdoer is not responsible for a consequence which is merely possible, according to occasional experience. The natural and probable consequences are those which human foresight can foresee, because they happen so frequently that they may be expected to happen again. The possible consequences are those which happen so infrequently that they are not expected to happen again. A man's responsibility for his negligence must end somewhere. As has been well said: "One is bound to anticipate and provide against what usually happens and what is likely to happen; but it would impose too heavy a responsibility to hold him bound in like manner to guard against what is unusual and unlikely to happen, or what, as it is sometimes said, is only remotely and slightly probable." ' " See also Powell v. Waters, 55 Ga. App. 307 (190 S. E. 615).
Applying these principles of law to the facts of the present case, what do we find? The petition as amended contains allegations that the negligence of Peggy Ann of Georgia Inc. concurred with that of the bus company in producing the injury and death of Mrs. Scoggins, but in our opinion this conclusion is not borne out by the facts, which show, on the contrary, that the sole proximate cause of the homicide was the negligence of the bus company in using and parking through its driver a bus with defective brakes on the incline described in the petition. It is clear from the petition that, upon stopping the bus on the alleged dangerous premises of Peggy Ann of Georgia Inc., the driver immediately left it and "departed," leaving the bus unattended and with Mrs. Scoggins in it. It is not shown that he went into the building maintained by Peggy Ann of Georgia Inc. for the sale of food, bus tickets, etc., or notified any person of authority with that defendant as to the presence of the bus or that it was observed or ought to have been observed by Peggy Ann of Georgia Inc. It appears that Mrs. Scoggins jumped from the bus at the direction of the driver as it was rolling down the incline, but where he then was is not made clear. It is alleged that the brakes on the bus were in a defective condition, in that they would not and did not operate with sufficient effectiveness to hold the bus in a firm standing position while it was parked on the incline; and that the defective condition of the brakes was concealed and invisible to Mrs. Scoggins, and that she did not know and could not have known of such defective condition of the brakes by the exercise of ordinary care. It was alleged that the bus company was negligent in permitting the bus to be operated while its brakes were in a defective condition, and that the driver was negligent in stopping the bus and parking it in a place where the brakes, while in a defective condition, would not hold the bus in a firm standing position while loaded with fare-paying passengers, including Mrs. Scoggins. Negligence was also alleged against Peggy Ann of Georgia Inc. as hereinbefore set out; but, construing the petition as amended most strongly against the pleader, as must be done on general. demurrer, it must be taken as showing that the bus rolled backward down the incline only because of the defective brakes, and that, if they had been efficient, the injury and death of Mrs. Scoggins would not have occurred. It was alleged that "scotch blocks" were furnished Peggy Ann of Georgia Inc. to scotch the wheels of incoming buses, and that they were maintained on the premises of such defendant, and that it was negligent in not using them on the bus here involved. However, it is not alleged that such defendant accepted them with any responsibility to use them in all events, or that it maintained them for its use rather than the use of the bus company. Of course, if these "scotch blocks" were the only means, which is not alleged, by which a bus with efficient brakes could have been kept in a "firm standing position," the defendant, under its invitation for buses
to enter upon the premises with proper brakes, would have been under the duty to use them. Since, however, the petition as amended must be construed to mean that the bus would not roll backward if the brakes had been efficient, Peggy Ann of Georgia Inc. can not be said to have been negligent in not using them or an equally efficient device in the present instance, in the absence of any notice of the presence of the bus with defective brakes. The defendant had the right to presume that the bus company and its driver would do their duty in maintaining efficient brakes on the bus, and the defendant was not under any duty to anticipate that the bus would be operated and parked with defective brakes. Furthermore, it was alleged that the defect in the brakes was concealed and invisible to Mrs. Scoggins, and inferentially it was likewise concealed and invisible to others. The petition as amended shows that the injury and death of Mrs. Scoggins was brought about solely and proximately by the negligence of the bus company and its driver, and the court erred in overruling the general demurrer of Peggy Ann of Georgia Inc. See Atlanta, B. & C. B. Co. v. Mullis, 43 Ga. App. 692 (159 S. E. 893).
Judgment reversed. Sutton, C. J., and Felton, J., concur.
Jefferson L. Davis, J. R. Cullens, Gambrell, Harlan & Barwick, James C. Hill, contra.
T. J. Long, for plaintiff in error.
DECIDED APRIL 11, 1952 -- REHEARING DENIED MAY 9, 1952.
Saturday May 23 04:56 EDT


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