Davis v. City of Toccoa

Full title: DAVIS v. CITY OF TOCCOA et al

Court: Court of Appeals of Georgia

Date published: Dec 1, 1955

91 S.E.2d 89 (Ga. Ct. App. 1955)

91 S.E.2d 89

Opinion

35805.

DECIDED DECEMBER 1, 1955. REHEARING DENIED DECEMBER 16, 1955.

Action for damages. Before Judge Frankum. Stephens Superior Court. May 30, 1955.

Kenyon, Kenyon Gunter, Wm. B. Gunter, for plaintiff in error.

C. M. McClure, McClure Ramsay, A. C. Wheeler, Wheeler, Robinson Thurmond, contra.

CARLISLE, J.

1. If three negligent acts are so related that the first two would probably not have resulted in injury if the third had not occurred, and the latter amounts to such a preponderating cause that it probably would have produced the injury even if the former 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 causes are not the proximate cause, that the intervention of the latter negligence breaks the chain of causal connection so far as juridic purposes are concerned ( Atlantic Coast Line R. Co. v. Daniels, 8 Ga. App. 775, 780, 70 S.E. 203; Mayor c. of Macon v. Dykes, 103 Ga. 847, 31 S.E. 443, and citations); and, where the petition shows on its face that the injuries complained of, in a suit for damages, did not flow naturally and directly from the wrongful acts or omissions attributed to the defendants or could not reasonably have been expected to result therefrom or would not have resulted therefrom but for the interposition of some independent unforeseen cause, such antecedent wrongful acts or omissions of the defendants would not be the proximate cause of the injury of which complaint is made. Vinson v. Augusta Roofing c. Works, 79 Ga. App. 434 ( 54 S.E.2d 274).

2. Under an application of the foregoing principle of law to the facts of the present case, the trial court did not err in sustaining the City of Toccoa's general demurrer or in sustaining the motion to dismiss, in the nature of a general demurrer, urged by Colonial Stores, Incorporated. Assuming for the sake of argument that both Colonial and the city were negligent, Colonial in blocking the alley and the city in permitting the alley to be blocked, neither was under any duty to anticipate that as a result of their negligence the driver of the city's truck would back the truck away from the blockade without keeping a lookout to the rear and would negligently run the truck upon and kill the plaintiff's wife.

3. Under a construction of the petition most strongly against the pleader on demurrer, the petition does not set forth a cause of action against the city for the negligence of its truck driver in backing the truck without keeping a lookout as there are no allegations of fact contained in the petition to show whether the driver of the truck was performing a governmental function, for which there would be no liability, or a ministerial function, for which there would be liability for negligence under certain conditions, and the petition must be construed as alleging that the driver's negligence occurred in the performance of a governmental function. Granat v. Mayor c. of Savannah, 59 Ga. App. 276 ( 200 S.E. 311).

Judgments affirmed. Gardner, P. J., and Townsend, J., concur.

DECIDED DECEMBER 1, 1955 — REHEARING DENIED DECEMBER 16, 1955.

CARLISLE, J.

Clay Davis brought an action for damages against the City of Toccoa, Georgia, and Colonial Stores, Incorporated, for the death of his wife. The material allegations of the petition as amended are substantially as follows. (2) The plaintiff is the surviving husband of Mrs. Byrt Craig Davis. There are no surviving children of their marriage. (3) The plaintiff's wife was wrongfully killed on September 24, 1953, in the City of Toccoa by the negligence of the defendants and their agents and servants. (4) On that date Colonial, by and through its agents and servants, illegally and negligently obstructed a street in the rear of its store in Toccoa with a large truck and trailer so as to prevent the passage of traffic along the street. (5) A vehicle owned by the city and operated by its agent and servant was attempting to pass along the street which was thus obstructed and blocked by Colonial. Upon reaching the illegal and negligent blockade, the servant driving the city's vehicle was forced to attempt to avoid the blockade by changing the direction of movement of the city's vehicle and in so doing, he ran over and killed the plaintiff's wife who was a pedestrian at the time. (6) Had it not been for the illegal and negligent blockade maintained across the street by Colonial, the city's vehicle would have continued its course along the street and the injury to the plaintiff's wife which resulted in her death would not have occurred. (7) On September 24, 1953, and prior thereto, it had been the custom and habit of Colonial to obstruct and blockade the street for several hours at a time while unloading merchandise for its store from its trailer-trucks. (8) The city knew, or should have known, or had ample opportunity to know of the unauthorized and illegal obstruction of this street by Colonial. (9) The city knew, or should have known, or had ample opportunity to know, that the customary illegal and unauthorized obstruction would and did impair the use of the street in an unreasonable manner for an unreasonable length of time which prevented the passage of traffic and endangered the person and property of persons using the street, including the plaintiff's wife. (10) Colonial was negligent in blocking and obstructing the street so as to prevent the passage of the city's vehicle as well as the passage of other vehicles, which created a dangerous habitual nuisance. (11) The city was negligent in knowingly and carelessly permitting one of its streets to be habitually obstructed by Colonial's trailer-trucks in such a manner that its own vehicle as well as other vehicles could not pass along the street. By knowingly and carelessly permitting such habitual obstruction of the street, the city permitted and condoned the maintenance of an habitual and dangerous nuisance in its street. (12) The acts of negligence related in paragraphs 10 and 11 contributed directly and concurrently in causing the wrongful death of the plaintiff's wife. (13) The plaintiff's wife was at the time in the exercise of ordinary care and could not have prevented "the accident" resulting in her wrongful death. (14) The plaintiff's wife had been his faithful, dutiful, and devoted companion for 32 years and the full value of her life is not less than $50,000. (15) Notice of his claim, as required by Code (Ann. Supp.) § 69-308, has been given the governing authority of the city 30 days prior to the filing to this petition and the plaintiff has had no response from the city. (16) The street on which the plaintiff's wife was killed was a public street or alley in the city, running parallel to Doyle Street, and was used constantly by the public for ingress and egress to and from the houses and places of business abutting on the said street or alley. The plaintiff's home faces Doyle Street and extends in the rear to the street or alley in which his wife was killed. The alley is approximately 20 feet wide and extends the length of the block from Pond Street to North Hill Street. (17) On the day the plaintiff's wife was killed Colonial stopped and parked its large trailer-truck in the alley at the rear of its store in such a way that less than three feet of the width of the street or alley was left free for the movement of other vehicular traffic and thus completely monopolized and obstructed the use of the alley and prevented the passage of other vehicular traffic. This illegal obstructing and blocking of the alley began around noon on the day the plaintiff's wife was killed and continued for three hours or longer until the plaintiff's wife was killed about 4:30 in the afternoon. All of this illegal obstructing and blocking of the alley was known and permitted by the city. (18) The plaintiff's wife was totally deaf and at the time she was killed she was using the street or alley for ingress and egress to and from their home. (19) At the time and place the city's truck was traveling southwestward along the street or alley and on finding the alley blocked by Colonial's trailer-truck, the driver of the city's truck, in order to avoid the obstruction and blockade, was forced to change his direction of movement, and in doing so, he started the truck backward along the alley without having any lookout on the rear of the truck and without being able to see what or who might be in the alley behind the truck and in this movement the truck struck and killed the plaintiff's wife. (20) In blocking the street or alley Colonial was violating a statute of the State of Georgia incorporated in Code § 68-309. Colonial was also violating a municipal ordinance of the city, incorporated in Section 32, Subsection B of the city code, which provides: "No person shall park a vehicle within an alley in such a manner or under such conditions as to leave available less than 10 feet of the width of the roadway for the free movement of vehicular traffic." (21) In failing to prevent the blockade of one of its public streets by Colonial, and in permitting the blockade, the city violated a State statute incorporated in Code § 69-304. The city had no authority to allow Colonial to maintain the obstruction in the alley. (22) The acts and omissions of the defendants as alleged in paragraphs 17, 20, and 21 constituted negligence per se, or negligence as a matter of law, and also negligence as a matter of fact under the circumstances alleged and upon these grounds of negligence the plaintiff bases his action.

The trial court sustained the city's general demurrer to the petition as amended as Colonial's motion to dismiss in the nature of a general demurrer and dismissed the petition as to both defendants. The plaintiff assigns error in this court on those judgments.