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Lawskills.com Georgia Caselaw
VENABLE et al. v. GRAGE et al.
42777.
Action for damages. DeKalb Superior Court. Before Judge Dean.
PER CURIAM.
1. The ruling on appellants' first motion for summary judgment is not the law of the case as to their subsequent similar motions.
Walter A. Grage brought an action against James R. Hager, James E. Hager, Jimmy Wingo, Cled Wingo, Charles Venable and Charles A. Venable, Jr., jointly, for damages for personal injuries and damage to his automobile proximately caused by the alleged joint negligence of the defendants. The material allegations are substantially as follows: On or about December 17, 1965, at approximately 8:15 a. m., the plaintiff was driving his 1960 Volkswagen sedan automobile in a southerly direction on Keystone Drive near its "T" shaped, or dead end, "intersection" with Flat Shoals Road, both of which are two-way, two landed, public thoroughfares. The plaintiff stopped at said "intersection," looked in both directions and slowly turned right into the northernmost lane of Flat Shoals Road proceeding in a westerly direction. Approximately 1,000 feet west of said "intersection," Flat Shoals Road crests a hill. At said time and place, defendants James R. Hager, Jimmy Wingo and Charles A. Venable, Jr., were engaged in a "drag race," or speed contest, approaching said "intersection" from a westerly direction on Flat Shoals Road. Defendant Hager's automobile was "overtaking and passing" those of defendants Wingo and Venable "at the crest of the said hill" 1,000 feet west of said "intersection." The Hager automobile, a 1957 Chevrolet sedan, failed to return to its right, or southernmost, land and collided with the plaintiff's automobile in the northernmost lane, forcing it backward approximately 25 feet and causing the alleged injuries and damage for which a recovery is sought. The alleged particulars "(a) in racing and otherwise engaging in a contest of speed with other motor vehicles upon the public highways, roads and streets of this State in violation of Georgia Code Section 68-1626(e), the same constituting negligence as a matter of law; (b) in failing, as owner and driver of an overtaken vehicle, to give way to the right in favor of an overtaking vehicle in violation of Georgia Code Section 68-1635 (b), the same constituting negligence as a matter of law; (c) by increasing, as owner and driver of an overtaken vehicle, the speed of such vehicle before being completely passed by the overtaking vehicle in violation of Georgia Code Section 68-1635(b), the same constituting negligence as a matter of law; (d) in failing to drive at an appropriate reduced speed when approaching an intersection in violation of Georgia Code Section 68-1626 (c), the same constituting negligence as a matter of law." The alleged negligence as a matter of law." The alleged negligence of the Hagers consists of violations of Code Ann. 68-1626(a), -1626(c), -1637(a), -1637(b)1, -1637(b)2, plus failure to maintain a proper lookout, have the automobile under control and give the plaintiff any warning.
The Venables filed a motion for a summary judgment, supported by an answer, demurrers, the affidavit of Venable, Jr., and the deposition of the plaintiff, and opposed by the depositions of Jimmy Wingo, Venable, Jr., and James R. Hager. Affiant Venable, Jr., testified substantially as follows: That, at the time and place alleged, he was driving to school in an easterly direction on Flat Shoals Road at a speed of between 30 and 35 m. p. h.; that he did not engage in a "drag race," or contest of speed, with either of the other defendant drivers immediately prior to the collision; that, at the time of the collision, the Hager vehicle had already passed him and was several car lengths ahead of him; that, after the collision, he slowed down and stopped before he reached the point of impact to give assistance to the persons involved in the accident; that, as he was being passed by the Hager automobile, he was well on his right side of the road, driving not in excess of 35 m. p. h., and he neither failed to give way to the right in favor of the overtaking vehicle nor increased his speed.
Dependent Grage, the plaintiff, testified substantially as follows: The he is a 36 year-old dentist; that, as he approached Flat Shoals Road on Keystone Drive, he passed an automobile on his right with a man sitting in it, stopped at the intersection, which he thought had neither a stop nor a yield sign, nor a stop light, then looked to the left then to the right on Flat Shoals Road, seeing no approaching traffic in either direction; that he remembered nothing past that time until he awoke in the hospital the next day; that from the place where he had stopped he could see only 40-50 yards to the right--to the vicinity just short of the bridge; that the distance one could see down Flat Shoals Road depended upon exactly where the automobile was stopped; that the weather was fair at the time of the collision; that there was a yellow line to the right of the center line and an intersection caution sign on Flat Shoals Road west of Keystone Drive; that he did not remember pulling out into the intersection and never saw any of the automobiles involved; that the only eyewitness he knew of was one Billy J. Minnix; that he did not know whether or not Hager failed to return to the right side of the road before coming within 100 feet of Keystone Drive or whether Venable, Jr., failed to give way to the right in favor of an overtaking vehicle or increased speed, or failed to drive at an approximately reduced speed approaching the intersection; that he thought his physician had stated that he had sustained a mild concussion.
Deponent Wingo testified substantially as follows: That he is nineteen years old; that he knew both of the other defendant drivers; that he had observed the collision; that Hager, whom he hadn't recognized before the collision, had just overtaken Venable, whose automobile he had recognized, and the plaintiff had made a right-hand turn from Keystone Drive, being about halfway on both streets; that the left front of the plaintiff's and Hager's vehicles collided, pushing the plaintiff's vehicle back to the left-hand curb of Keystone Drive, after which Hager, then Venable, stopped on the right-hand side of Flat Shoals Road; that past its intersection with Fayetteville Road, out of which he had just turned, Flat Shoals makes a slight, right-hand, blind curve, slopes gently downhill for 600-700 yards, crosses a bridge, then is level for several hundred yards to the Keystone Drive intersection; that he had just rounded the curve when he saw the vehicles and was 1,000 feet behind them at the time of the collision; that he estimated Venable's speed as 35 m. p. h. and Hager's as 40-45 m. p. h.; that, as he was rounding the curve, he saw Hager's vehicle overtaking Venable just past the bridge; that at the time of the collision Hager was one-half a car length ahead of Venable; that he saw no brake light come on on Venable's automobile; that he didn't know whether any horns were sounded because he was too far back and it was cold weather; that he saw no waving of hands or signs of recognition between the other two defendant drivers' that neither his vehicle nor Hager's vehicle was "souped up"; that he was a drag-race fan; that Venable's vehicle had been "souped up" by Venable's father, but that it wasn't supposed to be driven over 40 or 50 m. p. h. because it had some maladjustment; that he had never raced with either of the other two defendant drivers; that Venable, Sr., owned some drag-race cars, which Venable, Jr. never drove; that he had been given a traffic ticket for speeding in 1964; that Flat Shoals Road is a wide, two-laned road in that area; that it looked like Venable pulled over towards his right-hand side and decreased speed right before the collision, although Hager might have been increasing his speed; that, to his knowledge, Venable neither speeded up nor slowed down (except just prior to the collision) and did not fail to yield the right of way, get too close to the center of the road, or do anything else that would have prevented Hager's returning to the right lane after passing Venable.
Deponent Venable, Jr., testified substantially as follows: That he is nineteen years old; that he knew both of the other two defendant drivers; that his transmission had been geared down lower by a service station mechanic, so that the automobile could reach it top speed in a shorter distance; that he had been given two traffic tickets for speeding and one for not tail lights; that his father used to own drag-racing cars, but didn't at the time of collision; that he had driven a drag-racer himself only once and his mother said "That was it"; that he hadn't seen Wingo when he went through the intersection of Flat Shoals and Fayetteville Roads; that the first time he saw Hager's vehicle was just past the crest of the hill, where Hager commenced passing him without blowing his horn; that he had two girls and another boy as passengers at that time; that he was going 30-35 m. p. h. as Hager was passing him and maintained this speed without accelerating at any time; that the rear of Hager's vehicle was roughly even with the front of his own as they crossed the bridge; that when he heard the collision he looked at Hager's vehicle, which swerved back to the right afterwards, then he and Hager both stopped over on the right-hand side of the road; that he hadn't seen the plaintiff's automobile prior to the collision; that Hager's vehicle was 2 1/2 to 3 car lengths ahead of him after the collision; that he was able to stop without sliding; that the first time he had seen Wingo was after the accident, when Wingo walked up to the accident scene; that Hager made no attempt to swerve to the right prior to the impact and that, in his opinion, Hager had not seen the plaintiff until he "just jumped out there all of a sudden"; that, as he remembers, Hager did not apply his brakes prior to the impact; that his automobile wasn't really a "special car" at that time; that he did not have a reputation as a "speed demon"; that he was not running late for school at the time; that he was familiar with the intersection in question and did not regard that as a dangerous passing area; that he didn't remember any automobiles being in front of him at that time.
Dependant James R. Hager testified substantially as follows: That he is nineteen years old; that he knew the other two defendant drivers through school; that he commenced passing Venable right after going over the bridge, after having driven behind his automobile only about one second; that he didn't recognize Venable until he started passing him; that he didn't remember blowing his horn, that he didn't wave or anything as he passed; that he and Venable were both driving at about 30 m. p. h. when he commenced passing; that Venable had not increased his speed as he started to pass him and that he did not remember if Venable slowed down; that his automobile was almost even with Venable's at the time of collision--his own front bumper being only one or two feet ahead of Venable's front bumper; that he first saw the plaintiff's automobile at the point of impact and didn't remember applying his brakes; that he had not seen Wingo that morning prior to the collision; that his automobile engine had not been "worked on"; that there was no oncoming traffic or traffic ahead of Venable as he was passing; that his automobile stopped two car lengths past Keystone Drive after the collision; that he didn't remember where the Venable automobile stopped after the collision; that he had been on his way to school at the time of the collision, but was not running late; that he had previously received a ticket for illegal mufflers, but not for speeding; that his ability to get around the Venable automobile was not hampered because the Venable automobile speeded up, nor did it pull to the left or right, or slow down, to his knowledge.
The trial court denied the summary judgment and overruled the Venables' general demurrer to the petition, from neither of which judgments they appealed. Upon a motion for reconsideration, the trial court granted the Venables' motion for a summary judgment, from which judgment the plaintiff appealed to this Court. This court reversed the judgment on the ground of the trial court's lack of jurisdiction over the subject matter. Grage v. Venable, 114 Ga. App. 570 (151 SE2d 926). Subsequently, the Venables filed two additional motions for summary judgment, supported by the deposition of Venable, Jr., plus the affidavit of one Billy J. Minnix, and opposed by the same depositions previously filed, plus an answer and a motion to dismiss the Venables' motions. Affiant Minnix testified substantially as follows: That, at the time of the collision he was parked on Keystone Drive, about 150 yards from and facing Flat Shoals Road; that he couldn't see along Flat Shoals Road in either direction because of banks or ridges on the corners of the intersection; that the plaintiff's automobile made a complete stop before turning right and was struck by Hager's vehicle before he had completed his turn; that he had not seen any other automobile, including Venable's, either shortly before or at the time of the collision ; that he had no knowledge upon which to base any opinion as to Venable's speed, position in the road, or whether or not it was engaged in a contest of speed with any other vehicle; that he did not know of any other eyewitnesses to the collision other than the drivers of the automobiles involved and saw no other persons in the vicinity who were in a position where they could have observed the collision.
The trial court denied the Venables' motions for summary judgment, from which judgment they appeal.
1. The court's ruling on the appellants' first motion for summary judgment is not res judicata in their present appeal. On the appeal of the appellants' summary judgments the judgments were reversed on jurisdictional grounds not involving the merits of the grant of the summary judgments. It is too well settled to require citation of authority that the rulings in a case on technical grounds, not involving the merits do not constitute the law of the case. Besides, the additional motions involve additional material and in our view the court did not abuse its discretion in considering and deciding the second motions for summary judgment. Suggs v. Brotherhood of Locomotive Firemen &c., 106 Ga. App. 563 (127 SE2d 827); Stein Steel & Supply Co. v. Briggs Mfg. Co., 114 Ga. App. 603 (152 SE2d 629). Moreover, the appellee made a motion to dismiss the appellants' second motion for a summary judgment. This motion was denied by the trial court and no cross appeal from this judgment was filed.
There is no evidence in the record to support a finding that the action of the Venables was the proximate cause, or the concurrent or contributing proximate cause of the collision between the appellee and the defendant Hager. Therefore, the court erred in its judgment denying the appellants' motions for summary judgment.
Judgment reversed. Felton, C. J., Hall and Eberhardt, JJ., concur.
Gambrell, Harlan, Russell & Moye, James H. Bratton, Jr., Sidney F. Wheeler, Dan McConaughey, for appellees.
ARGUED MAY 2, 1967 -- DECIDED SEPTEMBER 5, 1967 -- DENIED SEPTEMBER 21, 1967 -- CERT. APPLIED FOR.
Friday May 22 19:45 EDT


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