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MERIWEATHER v. ATLANTA TRANSIT COMPANY.
33512.
Action for damages; from Fulton Superior Court-- Judge Andrews. January 10, 1951.
GARDNER, J.
The petition failed to show any acts of negligence on the part of the defendant transit company which constituted a proximate cause of the injuries sustained by the plaintiff when struck by the truck of the American Oil Company, and the general demurrer of the defendant transit company was properly sustained and the petition dismissed as to this defendant.
Eva Meriweather, hereinafter called the plaintiff, a minor, by her father, Jimmie Meriweather as next friend, brought her action in Fulton Superior Court against the American Oil Company and the Atlanta Transit Company, both corporations doing business in Fulton County, seeking to recover $15,000 as damages because of certain personal injuries which she sustained because of the alleged negligence of the two defendants. The defendants separately demurred to the petition and the trial court overruled the general demurrer of the American Oil Company, but sustained the general demurrer of the transit company and dismissed the action as to it. The case is in this court upon exception by the plaintiff to the judgment dismissing her case as to the transit company.
The plaintiff set up in her petition that the two defendants injured and damaged her as alleged; that 11th Street, and Peachtree Street, N. E., are public streets in the City of Atlanta, said State and county and these streets intersect in said city, 11th Street running easterly and westerly, and Peachtree Street running northerly and southerly; that 11th Street is 40 feet wide at the point involved; that the plaintiff is a child of only 7 years of age and "therefore incapable of appreciating the dangers hereinafter set out as fully as an adult of mature years and discretion"; that around 6 p.m. on September 5, 1950, the plaintiff was proceeding to cross from the sidewalk bounding the south side of 11th Street to the sidewalk bounding the north side thereof at a point about 50 feet west of the intersection thereof with Peachtree Street, N. E.; that there was an automobile parked on the south side of 11th Street immediately to the plaintiff's left as she started to cross said street and although she looked to the west, she was unable to see any vehicle approaching from that direction, and she also looked to her right, but saw no vehicle then approaching from that direction; that the plaintiff then proceeded several paces into the south side of 11th Street and then saw, about 100 feet away, a trackless trolley approaching her from the west on 11th Street at a "rapid rate of speed" 25 to 30 miles an hour; that "faced with the peril of being in the path of the oncoming trolley proceeding at said rapid speed, your petitioner instinctively dashed forward to escape said trolley, because the operator of the trolley did not slacken his speed or apply his brakes while approaching your petitioner"; that this trolley was maintained and operated by the defendant transit company and was being driven at the time by an agent and servant of such defendant while in the authorized scope of his employment with it; that the operator of this trolley "saw or in the exercise of ordinary care should have seen your petitioner at said time, because she was directly in the path of said trolley"; that the plaintiff, "being faced with the sudden emergency of the oncoming trolley as above set out, did not at that moment look to the right for any traffic which might have been approaching from the east because she was engrossed in escaping the trolley"; that when the plaintiff "dashed ahead across 11th Street . . . she had reached a point only ten feet from the north curb bounding 11th Street when she was struck with great force and violence by the right front wheel of a 1941 Brockway tractor-trailer tank truck," maintained and operated by the defendant oil company, and being driven at the time by Robert F. King, the agent and employee of the oil company, who at said time was working in the authorized scope of his employment with that defendant; that this tank truck, prior to striking the plaintiff, had been proceeding south on Peachtree Street, N. E., and had turned west into 11th Street at said intersection; that King was operating this truck, which weighed some ten tons, at the rapid speed of 25 miles an hour as he turned into 11th Street and he did not slacken his speed; that although King saw that the plaintiff was trapped by the trolley and saw that she was looking towards the trolley while in the path of this truck, he did not slacken his speed nor apply his brakes until after he had
struck the plaintiff; that the right front wheel of the truck struck the plaintiff at a point about 10 feet from the curb bounding the north side of 11th Street and although there was at least 10 feet of clear and unobstructed roadway from the point where she was struck to the center line of 11th Street, King failed to swerve the truck to his left in order to avoid hitting the plaintiff; that the operator of the trolley, at this time, saw the tank truck turn into 11th Street and approaching the plaintiff from the east and he saw that the plaintiff was trapped in the street between this trolley and the truck approaching from the east, but despite said facts, the trolley operator did not slacken the speed of nor stop the trolley while approaching the plaintiff, and such action on his part forced the plaintiff to dash out of his way and into the path of the approaching truck; that as a result of being so hit by the truck the plaintiff sustained severe and permanent injuries and much pain and anguish and was taken to Grady Hospital where she remained for a long time, and she will suffer from said injuries for the rest of her life; that the defendant oil company, through its agent and servant King was negligent (a) in failing to apply the brakes of the truck prior to striking the plaintiff; (b) in failing to stop the truck before hitting her; (c) in failing to slacken the truck's speed prior to hitting the plaintiff; (d) in driving the truck at a speed of 25 miles an hour while turning the truck and driving into 11th Street under the circumstances alleged; (e) in failing to stop the truck immediately after hitting her; (f) in causing the plaintiff to be dragged 15 feet, by the wheel of the truck; (g) in failing to swerve to the left when the remainder of the roadway was unobstructed and avoid striking the plaintiff; and (h) in failing to slacken his speed while the plaintiff was in his path and in a position of peril; that the defendant transit company, by its servant, was negligent (a) in failing to slacken the trolley's speed after the operator saw the plaintiff in the trolley's path; (b) in failing to stop the trolley prior to reaching the point where the plaintiff was in his path; (c) in failing to slacken the trolley's speed when he saw that the plaintiff was trapped in a perilous position between the trolley and the truck; (d) in forcing the plaintiff, by not slackening the trolley's speed, to jump for her safety from a position in the path of the trolley into the path of the oncoming truck, and (c) in operating said trolley at a speed of 25 to 30 miles an hour at said time and place; that each act of negligence of the oil company "joined and concurred with each" act of negligence of the transit company "in proximately producing all" of the plaintiff's injuries; and that at the time she was injured the plaintiff had a life expectancy of 50.8 years, according to the Carlisle Mortality Tables.
It is insisted that the plaintiff was injured as a result of the concurrent negligence of the two defendants. It is claimed that the allegations of the petition, together with the admission of the defendant transit company by its general demurrer, show that the Atlanta Transit Company was negligent and that this negligence concurred with that of the defendant oil company in causing her injury. The plaintiff contends that it affirmatively appears from the petition that the negligence charged to the transit company constituted a contributing proximate cause of her injury, and that the court erred in sustaining the demurrer of the transit company in that it appears from the petition that the "negligence attributable to it did not constitute the proximate cause of the injuries alleged to have been sustained by the plaintiff, nor did said alleged negligence concur with any of the [negligence of the] defendant American Oil Company to contribute to the alleged injuries."
There is no merit in the plaintiff's contention that by the general demurrer interposed the transit company admitted that it was negligent but disputed the fact that it was guilty of actionable negligence. By its general demurrer, and for the purpose of determining whether the petition was subject thereto or not, the defendant transit company admitted that the allegations contained in the petition were true, but did not admit that the conclusions of law drawn therefrom by the plaintiff were good. By the demurrer this defendant transit company attacks the soundness of these conclusions of law urged, and contends that, from the facts alleged, it appeared that the transit company was not guilty of negligence which constituted a contributing proximate cause of the plaintiff's injury, in other words, the defendant transit company says that the facts pleaded, admitting them to be true as alleged in the petition, fail to show that it was negligent in the premises and that such negligence was a proximate cause of the plaintiff's injuries. The petition, the defendant transit company claims, affirmatively discloses that the acts charged as negligence on its part did not constitute as a matter of law, a proximate cause of the plaintiff's injury.
It appeared from the petition that the plaintiff, a small child 7 years of age, attempted to cross a public street at a place where persons were not accustomed to cross and when she had proceeded several paces into the street she observed approaching her at a speed of 25 miles an hour, and only 100 feet away, a trackless trolley of the defendant transit company and that she was thereby placed in a position of peril, and instinctively sought to dash across the street and out of the way of the trolley. It did not appear that it was through any act of the transit company that the plaintiff got into this perilous or emergency position. The petition set up that the trolley did not slacken its speed although the driver thereof "saw or in the exercise of ordinary care should have seen" the plaintiff directly ahead and only 100 feet away. This was not an allegation that the driver of the trolley actually saw the plaintiff or that he could have slowed down or stopped the trolley within 100 feet to save the plaintiff from being struck by the truck. Southern Ry. Co. v. Lomax, 67 Ga. App. 406 (4) (20 S. E. 2d, 437). The plaintiff was at a place in this street where there was no reason for the driver of the trolley to anticipate her presence. The driver of the trolley, even if he saw this child at the instant she came into view in front of him, did not have time to stop his trolley or to do anything to prevent the plaintiff from acting as she did,--that is, from dashing on across this street, and out in front of the trolley, where she was struck by the truck of the American Oil Company, which had turned from Peachtree Street into this street. This intersection was only 50 feet from where the plaintiff attempted to cross 11th Street. It does not appear how any of the acts charged by the plaintiff as negligence on the part of the transit company caused or directly contributed to her injury, that is, how the plaintiff's injury would have been avoided had the driver of the trolley slackened his speed when he saw the plaintiff, which speed was lawful, and it does not appear how, if he had done so, this would have prevented the plaintiff from dashing on towards the opposite curb, nor how his failure to stop, if that could have been done, before he reached the place where the plaintiff was in front of him, could have prevented the plaintiff from being struck by the oil company truck. It is to be borne in mind at all times that even if the driver of the trolley saw the plaintiff immediately as she stepped out into this street from behind the parked car, he was only 100 feet from the point where she was attempting to cross and that it was only a matter of three or four seconds before he would reach the place where she was and that he could not have stopped the trolley nor slackened his speed sufficiently to have prevented the plaintiff from becoming frightened and instinctively seeking to avoid being hit by the trolley by dashing towards the opposite curb, not knowing that the truck of the defendant oil company was turning into this street at the intersection 50 feet away. It does not appear from the petition that the transit company, by not stopping the trolley nor slackening its speed, forced the plaintiff to jump for her safety from a position in the path of the trolley into the path of the oncoming truck. This is not a case where the trolley struck the plaintiff, but a case where the plaintiff attempted to cross a street, at a place where persons were not in the habit of crossing and where her presence was not to be anticipated by the driver of the trolley, and suddenly appeared in front of the trolley while it was almost upon her, where the driver of the trolley could not have seen her sooner than she saw the trolley, and where in this position of peril where she had placed herself she instinctively dashed, not back from where she started, but on towards the opposite curb and was struck by the oil company truck. The negligence of the transit company, even if the acts charged in the petition as negligence could be held to be negligence, did not constitute the proximate cause of the plaintiff's injuries.
This was one of those plain and unmistakable cases where the acts charged as negligence could not have been properly determined by a jury to have been a proximate cause of the injury sued for, and there was nothing for the jury to pass upon in this regard, as to the transit company.
The conclusions of the plaintiff in this regard are in conflict with what appears from the pleaded facts and are to be disregarded. See Flynt v. Southern Ry. Co., 7 Ga. App. 313, 316 (66 S. E. 957).
In Stallings v. Georgia Power Co., 67 Ga. App. 435 (20 S. E. 2d, 776), it was ruled that, "It is the general rule that one's responsibility for negligence must end somewhere. The plaintiff can not always recover for the negligence of another. The law always refers the injury to the proximate cause, not to the remote cause . . . Negligence, no matter in what it consists, can not create a right of action unless it is the proximate cause of the injury complained of." It did not appear that the plaintiff's injury was the natural and probable consequence of the acts alleged by the plaintiff to have been negligence as to the defendant transit company and that her injury ought to have been foreseen in the light of attending circumstances, but the petition affirmatively discloses the contrary.
The plaintiff suddenly appeared in front of the trolley (from behind a parked automobile), 100 feet away, and the trolley was traveling 25 miles an hour, and there was nothing to cause the driver of the trolley to anticipate that the plaintiff would be where she was, and it can not be held that the jury could have determined that, had the driver of the trolley in these circumstances stopped the trolley or slackened the lawful speed of the trolley, the plaintiff would have been prevented, from dashing towards the opposite curb and into the path of the truck of the oil company, turning into the intersection from the other direction, and which struck and injured the plaintiff, In these circumstances the petition as a matter of law fails to allege any acts of negligence on the part of the defendant transit company which concurred in and contributed to the plaintiff's injury and the trial judge properly dismissed the plaintiff's action as to the defendant transit company. See generally, in this connection, Christian v. Smith, 78 Ga. App. 603 (51 S. E. 2d, 857); Perry v. Macon Consolidated Street R. Co., 101 Ga. 400 (29 S. E. 304).
540, 544 (13 S. E. 2d, 848), rendering the rulings therein applicable here. We have carefully examined the decisions cited by the plaintiff in her brief and do not find anything to the contrary of our holding here. The principles laid down in Smith v. American Oil Co., 77 Ga. App. 463, 491 (49 S. E. 2d, 90), Letton v. Kitchen, 166 Ga. 121 (142 S. E. 658), and Bonner v. Standard Oil Co., 22 Ga. App. 532 (96 S. E. 573), to the effect that questions of negligence, proximate cause, causal relation and what negligence as well as whose negligence caused the injury sued for, are questions for consideration by the jury, under proper instructions from the court, have all been considered in the determination of the present case.
There is nothing in the facts alleged to show that the principle "that the intervening agency could have reasonably been anticipated or foreseen by the original wrongdoer" (if the transit company could be considered a wrongdoer) is applicable, as in Rome Railway & Light Co. v. Jones, 33 Ga. App. 617 (2) (127 S. E. 786). We agree with the principle of law that "children must be expected to act upon childish instincts and impulses, and not to exercise the discretion and prudence necessary for their safety, with regard to dangerous agencies." Glover v. Dixon, 63 Ga. App. 592, 599 (11 S. E. 2d, 402). However, it is not made to appear how any act of commission or omission, charged to the defendant transit company in the petition, would have prevented the plaintiff from acting as she did.
Edelblute, 179 Va. 685 (20 S. E. 2d, 506), applies here. The acts of the driver of the trolley did not make possible the act of the driver of the oil company truck in running over the plaintiff. The driver of the trolley did not negligently place the plaintiff in a position of danger.
While the record does not reveal it, it is argued without dispute that the court overruled the demurrer of the American Oil Company, but we are not here concerned with the ruling regarding the American Oil Company.
It follows that the court properly dismissed the petition as to the defendant transit company.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.
MacDougald, Troutman, Sams & Schroder, for defendant.
Reuben A. Garland, Anthony A. Alaimo, for plaintiff.
DECIDED APRIL 25, 1951.
Saturday May 23 05:30 EDT


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