Opinion
33819.
DECIDED MARCH 18, 1952. REHEARING DENIED APRIL 2, 1952.
Action for damages; from McDuffie Superior Court — Judge Perryman. August 23, 1951.
Randall Evans Jr., for plaintiff.
Jones, Jones Sparks, Knox Neal, for defendants.
Properly construed, the petition stated a cause of action against Turman, the driver of the truck, and his alleged principals, and the trial court erred in sustaining their oral motion, in the nature of a general demurrer, and in dismissing the petition as to them.
DECIDED MARCH 18, 1952 — REHEARING DENIED APRIL 2, 1952.
Omer L. Guy brought an action for damages against The S. A. Blanchard Funeral Home, sometimes known as and called Blanchard Funeral Home; Mrs. S. A. Blanchard, as the owner of the funeral home; Clarence R. Foster Jr., as the operator of the funeral home; Earl Turman, as the employee and driver of the funeral home's truck; and Sabbath McNair, as the driver of an automobile, alleged to have collided with the truck of the funeral home. The allegations of the petition, as finally amended, are substantially these: On June 12, 1950, the plaintiff was seriously injured as the result of the joint and concurrent negligence of the defendants. On that date, the plaintiff was driving his tractor northward on State Highway No. 17 at a moderate rate of speed on the right-hand, or eastern, side of the highway. A slow rain was falling. It was the end of the day and dark enough for vehicles using the highway to be required to use their lights. The plaintiff had the lights of his tractor on, and he was observing both the laws of the State and the rules of ordinary care and diligence for his protection and the protection of others using the highway. Suddenly a Ford truck, owned by the funeral home and driven by Turman at the high and dangerous speed of sixty miles per hour, approached the plaintiff from the rear. Turman in driving the truck was acting within the scope of his employment. As Turman reached a point on the highway adjacent to the plaintiff's tractor, Turman could see the lights of a vehicle some 300 yards north of him approaching in a southerly direction. The highway in question is one over which there is a constant flow of traffic, which was known to Turman. Shortly before reaching the plaintiff's tractor, Turman jerked the truck sharply to his left and ran onto the left-hand, or western, dirt shoulder of the highway and almost turned the truck over. He then jerked the truck sharply to the right so that the truck overturned on the pavement of the highway in such fashion as to entirely obstruct the western traffic lane of the highway and to extend more than five feet over the center line of the highway, leaving only about four feet of pavement on the eastern traffic lane unobstructed, which is not sufficient space to allow another vehicle to pass. When the truck overturned, Turman was pinned inside the cab of the truck, and he immediately screamed for help, crying out for someone to come to his assistance and to extricate him before the truck caught fire and burned him alive. The plaintiff heard Turman's calls for assistance, and immediately stopped his tractor on the right-hand, or eastern, shoulder of the highway and ran to the front, or northern, end of the truck in order to help extricate Turman from the cab, believing that Turman was seriously injured, and also believing him to be in the imminent danger of the truck's catching on fire. The plaintiff became excited upon hearing Turman's cries for help, and in hastening to his rescue was acting under the stress of the emergency created by the negligent acts of Turman. The highway at this point is straight and level, without hill or curve, for at least a half mile to the north and a half mile to the south, to obscure a vehicle on the highway at this point. While the plaintiff was at the northern end of the truck in his attempt to rescue the persons pinned therein, the same automobile, which Turman had previously seen approaching from a northerly direction, approached the overturned truck. This automobile was being driven by Sabbath McNair. In the direction in which McNair was driving, the right or western traffic lane was entirely obstructed by the overturned truck, and the left traffic lane was partially so obstructed as to allow insufficient room for vehicular traffic. McNair kept to the right-hand side of the center line of the highway and drove into and against the plaintiff and the overturned truck and seriously and permanently injured the plaintiff. As McNair approached the overturned truck, the rain began to fall faster, and although McNair's lights were burning on his car, no other lights were visible and McNair did not immediately see the overturned truck, which was of a dark color and blended with the dark color of the pavement in the falling rain and darkness, and was impossible to see, thus presenting the optical illusion that the way ahead of McNair was clear; when the rain began falling faster, McNair slowed his car to approximately thirty miles per hour, and when he was within about fifty yards of the overturned truck he saw it, but in the rain and darkness it appeared to extend across the entire width of the highway, particularly so as the lights of his car were focused on that portion of the truck which was on the west side of the highway. When McNair saw the overturned truck, he immediately applied his brakes and slowed his car, but was unable to come to a complete stop until he had struck the plaintiff and the overturned truck.
The plaintiff further alleged that the proximate cause of the collision was the separate, distinct, and concurring acts of negligence on the part of Turman and McNair, which negligence acted concurrently in producing the plaintiff's injuries. The specific acts of negligence of Turman, for which his employer, Mrs. S. A. Blanchard, Clarence R. Foster Jr., and S. A. Blanchard Funeral Home, are liable and responsible and which concurred with McNair's negligence in producing the plaintiff's injuries were: (a) in operating the truck at the high and dangerous rate of speed of sixty miles per hour; (b) in failing to have the truck under control so as to be able to pull to his left and pass the plaintiff's tractor after observing the plaintiff and his vehicle; (c) in failing to bring the truck to a stop before turning it over; (d) in jerking the truck in a violent manner so that he lost control of it as it ran to the left-hand side of the highway and then in jerking it back violently, while still out of control, so as to cause it to turn over because of the too-sudden jerk on the steering wheel and guiding apparatus; (e) in creating a situation from which it was necessary to be rescued when, by the exercise of ordinary diligence, such situation could have been avoided: (f) in negligently overturning the truck on his left-hand side of the highway, knowing that it was a heavily traveled highway, and seeing another vehicle approaching at the time, and knowing that the plaintiff would be attracted by his cries for help; and being bound to apprehend and anticipate that injurious consequences would likely result to the plaintiff from the condition thus negligently created, wherein the plaintiff would be required to be working on Turman's left-hand side of the highway in darkness when other south-bound motor vehicles would probably approach with the rightful expectation of using the western lane for normal passage, and actually knowing that one vehicle was in the immediate vicinity, headed south at the time; (g) in putting into operation other causal forces, to wit, the operation of the automobile by McNair in running into and against the plaintiff, which acts by McNair were the direct, natural, and probable consequences of Turman's overturning his truck and blockading the highway, which acts would have reasonably been anticipated and foreseen by the original wrongdoer, Turman.
The specific acts of negligence of McNair which concurred with the negligence of Turman in producing the plaintiff's injuries were: (a) in running into and against the plaintiff and the overturned truck without slackening his speed and without bringing his car to a stop before doing so; (b) in proceeding along the highway without knowing what was ahead of him, taking a chance with the life and safety of the plaintiff and others, under the circumstances alleged, instead of bringing his car to a slow speed in order to investigate and in order to stop before striking the plaintiff.
All of the defendants, except McNair, made an oral motion in the nature of a general demurrer, to dismiss the action as to them. Such motion was sustained, and the plaintiff excepted.
The single question for determination is whether the trial court erred in sustaining the oral motion, in the nature of a general demurrer, to dismiss the petition as to Turman, the driver of the funeral truck, and as to his alleged principals.
"Where one suffers injuries as the result of the concurrent negligence of two tort-feasors, the injured party may maintain a joint or several suit against the tort-feasors; and it will be sufficient to support a recovery in a joint suit if the negligence of both be a contributing cause of the injuries. Gooch v. Georgia Marble Co., 151 Ga. 462 ( 107 S.E. 47). . . [but] it must be borne in mind that generally the question of what is the proximate cause of an injury, like the question of what is negligence, is a question for the jury. Perry v. Macon c. R. Co., 101 Ga. 400, 407 ( 29 S.E. 304); Central of Ga. Ry. Co. v. Tribble, 112 Ga. 863 ( 38 S.E. 356); Georgia Ry. c. Co. v. Norris, 135 Ga. 838 ( 70 S.E. 793); Logan v. Hope, 139 Ga. 589 ( 77 S.E. 809); Mayor c. of Unadilla v. Felder, 145 Ga. 440 ( 89 S.E. 423); Bonner v. Standard Oil Co., 22 Ga. App. 535 ( 96 S.E. 573) . . Causal relation is one of fact; and it is always one for determination by a jury, except when the facts are such that they will support only one reasonable inference. Green's Proximate Cause, 132. There must be no reasonable ground for two opinions." Letton v. Kitchen, 166 Ga. 121 ( 142 S.E. 658).
"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." Southern Ry. Co. v. Webb, 116 Ga. 152 ( 42 S.E. 395, 59 L.R.A. 109). And it is sufficient if it appears that the negligence of the original wrong-doer would probably cause harm to some person, though the precise form in which it in fact resulted could not have been foreseen. Huddy, Encyclopedia of Automobile Law (9th ed.), Vol. 3-4, p. 46, § 21; Bozeman v. Blue's Truck Line, 62 Ga. App. 7, 10 ( 7 S.E.2d 412); 1 Cooley on Torts, 140; and see Ibid., 132, 135, § 52; Restatement of the Law or Torts, 1199, § 448. It is the negligence producing the situation which determines the liability.
When the allegations of the petition are considered in the light of the foregoing rules, it is clear that the court erred in sustaining the oral motion to dismiss the petition as to Turman, the driver of the funeral truck, and as to his alleged principals.
Under the allegations of the petition, which must be taken as true as against a general demurrer, Turman's negligence in operating the truck at the excessive speed of sixty miles per hour, and his negligence in jerking the steering apparatus first sharply to the left and then sharply to the right, at the time and place and under the circumstances alleged, unquestionably combined to cause the truck to overturn and blockade all but four feet of the paved portion of the highway, which he knew to be heavily traveled; and he created that situation at a time when he knew that an automobile was traveling directly toward him and along the lane of the highway obstructed by his overturned truck. He thereby created by his negligence a situation from which it was necessary for him to be rescued, knowing that the plaintiff would be attracted by his cries for help and would, in his efforts to rescue him, be working in darkness in the path of automobiles approaching with the rightful expectation of using the obstructed highway for normal passage. While it is alleged that McNair was negligent in running into the plaintiff and the overturned truck without slackening his speed and without bringing his car to a stop and in proceeding along the highway, under the circumstances, instead of reducing the speed of his car to investigate and in order to stop before striking the plaintiff, it is also alleged: that, as McNair approached, driving along the highway on his right-hand side of the center, that lane for traffic was entirely obstructed by the truck and there was insufficient room in the other lane, also partially obstructed by the overturned truck, to permit the passage of vehicular traffic; it suddenly began to rain faster, and although the lights on McNair's car were burning, there were no other lights visible, and McNair did not immediately see the overturned truck, which was of a dark color and blended with the dark color of the pavement in the falling rain and darkness and was impossible to see, thus presenting the optical illusion that the way ahead of McNair was clear; that, as the rain began to fall faster, McNair slowed his car to approximately thirty miles per hour and when he was within about fifty yards of the overturned truck, he saw it, but in the rain and darkness it appeared to extend across the entire width of the highway, particularly so as the lights of his car were focused on the portion of the truck which was on the west side (McNair's right-hand side) of the highway; and that, when McNair saw the overturned truck, he immediately applied his brakes and slowed his car, but was unable to come to a complete stop until he had struck the plaintiff and the overturned truck. Thus, properly construed, we cannot say as a matter of law that McNair's alleged negligence was the sole proximate cause of the plaintiff's injuries. Nor can we say that the plaintiff, under the allegations of the petition, was, as a matter of law, so contributorily negligent in going to the rescue of Turman, under the circumstances alleged, as to preclude his recovery. It remains, therefore, a question for the jury to determine whether the defendant Turman created a situation by his negligence which he could reasonably have foreseen would set into operation, under the circumstances, forces which would result in injury to some member of the class of persons to which the plaintiff belonged, travelers upon that highway.
Judgment reversed. Gardner, P. J., and Townsend, J., concur.