Opinion
35365, 35369.
DECIDED JANUARY 14, 1955. REHEARING DENIED MARCH 18, 1955.
Action for damages. Before Judge Carpenter. Putnam Superior Court. July 13, 1954.
Peter J. Rice, Randall Evans, Jr., for Mrs. W. I. Waller.
Whitman Whitman, Erwin Sibley, for W. E. Tuggle.
Anderson, Anderson, Walker Reichert, for Wright Contracting Company.
1. When the almost identical allegations of fact contained in the present petition were considered by this court in Wright Contracting Co. v. Waller, 89 Ga. App. 827 ( 81 S.E.2d 541), it was held that, as a matter of law, the negligence of the defendant Tuggle in parking on the dangerous embankment and failing to set the brakes on his automobile or otherwise to act to prevent his automobile from rolling backward was the intervening and efficient cause of the plaintiff's injuries, and that such negligence as that alleged against Tuggle was not reasonably foreseeable by the defendant Wright Contracting Company. Without the addition of a single new factual allegation of any materiality, the plaintiff has added to those allegations of fact her conclusions that the defendant Wright Contracting Company actually anticipated negligence of the type of which Tuggle is allegedly guilty, and that Wright Contracting Company's misconduct in failing to remedy the dangerous grade of the embankment when requested so to do was wilful and wanton. The special facts pleaded by the plaintiff are at variance with her general conclusions and must control. Lewis v. Amorous, 3 Ga. App. 50, 53 ( 59 S.E. 338); Conney v. Atlantic Greyhound Corp., 81 Ga. App. 324, 327 ( 58 S.E.2d 559). The special facts pleaded show that such negligence as was charged against Tuggle was not reasonably foreseeable by Wright Contracting Company. Waller v. Wright Contracting Co., supra. The specific facts pleaded do not warrant the characterization of Wright Contracting Company's refusal to alter the grade of the embankment as wilful and wanton, since, under the allegations of the petition, the company is not shown to have had any reason for anticipating that the acts of negligence charged against Tuggle would be consequent upon its failure to remedy the grade of the embankment, and it cannot be wilful and wanton misconduct to fail to guard against an unforeseen danger. Reid v. Sinclair Refining Co., 62 Ga. App. 198 ( 8 S.E.2d 527), and citations. It follows that the petition as finally amended failed to state a cause of action against the defendant Wright Contracting Company, and the trial court did not err in sustaining its general demurrer thereto and in striking it as a party defendant.
2. Whether or not Tuggle, who was not a successful party in the trial court within the meaning of Code § 6-901, was entitled to come to this court by way of cross-bill of exceptions, and for that reason the cross-bill of exceptions should be dismissed, the result is the same, as the cross-bill of exceptions is to be dismissed where the judgment of the trial court is affirmed on the main bill.
Judgment affirmed on main bill; cross-bill dismissed. Gardner, P. J., and Townsend, J., concur.
DECIDED JANUARY 14, 1955 — REHEARING DENIED MARCH 18, 1955.
In Wright Contracting Co. v. Waller, 89 Ga. App. 827 ( 81 S.E.2d 541), this court held that, in Willie I. Waller's action for damages for personal injuries against Wright Contracting Company and William Earl Tuggle, Waller's petition, as finally amended, failed to state a cause of action against Wright Contracting Company for such injuries, allegedly caused by the joint negligence of the two defendants, as it appeared from the averments of the petition that "the negligence alleged against the defendant Tuggle in not setting the brakes on his automobile and in not otherwise acting to prevent its rolling backward was the intervening and efficient cause which proximately caused the plaintiff's injuries, which negligence was not reasonably foreseeable by Wright Contracting Company."
Mrs. Waller, the wife of Willie I. Waller, has brought the present action for the loss of consortium against the same defendants in her husband's suit, as her damage allegedly grew out of the same events which occasioned Mr. Waller's personal injuries. The major portion of the allegations contained in her husband's petition have been incorporated in Mrs. Waller's petition and will not be reiterated here, as those allegations have been reported in the Wright Contracting Company case, supra. The differences between the two petitions as finally amended are these: In Mrs. Waller's petition it is alleged that the dangerous slope left by the Wright Contracting Company was on the right-of-way of the highway adjacent to Mr. Waller's property, whereas in Mr. Waller's petition it was alleged that the dangerous slope was in part on the right-of-way and in part on Mr. Waller's property. To the allegations of negligence contained in Mr. Waller's petition, the following acts of negligence were charged against Wright Contracting Company in Mrs. Waller's petition. The defendant Wright Contracting Company was negligent "in acting with conscious indifference to consequences, and with full knowledge of the dangerous situation created by Wright Contracting Company, by refusing to correct the situation after being entreated so to do by plaintiff, and in wilfully failing to do anything to correct said dangerous condition until after plaintiff had been injured. . . Wright Contracting Company and its agent Goodson were fully cognizant of the dangerous situation it had created, and that the probable and natural consequence of the condition of said approach was to injure someone; did not correct the situation until Willie I. Waller was injured. . . Wright Contracting Company could reasonably have foreseen that its conduct as aforesaid, not improbably, but in the natural and ordinary course of things, would be followed by the negligence of some individual who would leave his car unattended, and unbraked on said approach, and would thus cause injury to some person through the movement of said vehicle while unattended. . . Wright Contracting Company did anticipate that its conduct as aforesaid, not improbably, but in the natural and ordinary course of things, would be followed by the negligence of some individual who would leave his car unbraked and unattended on said approach, and would thus cause injury to some person through the movement of said vehicle while unattended. . . The conduct of the said Wright Contracting Company in the matters aforementioned was of such character that, according to the usual experience of mankind, it was calculated to invite or induce the intervention of a subsequent cause, and negligent act of another person, and particularly the leaving of an unattended and unbraked automobile in such fashion that it might and would run over a pedestrian on said approach. . . The conduct of said Wright Contracting Company was such that it put other forces in operation, particularly the moving of said . . . [Tuggle's automobile?] which resulted in injury, same being the natural and probable consequence of the act of Wright Contracting Company, and the later acts of Tuggle being such that same reasonably should have been foreseen by it as such consequence. . . The said Wright Contracting Company anticipated and foresaw the reasonable and natural consequences of its conduct, including the moving of said vehicle which ran into and over Willie I. Waller, while same was unattended and unbraked. . . The conduct of the said Tuggle was such that its probable and natural consequences could reasonably have been anticipated, apprehended, or foreseen by the said Wright Contracting Company. . . The conduct of said Wright Contracting Company was such that the said conduct of the said Tuggle was such that its probable and natural consequences were anticipated, apprehended, and foreseen by the said Wright Contracting Company. . . The conduct of the said Wright Contracting Company as aforesaid was wilful and wanton and without lawful excuse or justification. . . [The act of Wright Contracting Company?] in wilfully and wantonly failing to correct the aforesaid dangerous situation, after request so to do by Willie I. Waller, and with full knowledge that the probable and natural consequences would be to cause automobiles to go out of control thereon when left unattended, and that said later acts of negligence by autoists would not improbably, but in the natural and ordinary course of things, follow the original act of negligence of Wright Contracting Company, and being of such character that, according to the usual experience of mankind, was calculated to invite and induce the intervention of said subsequent cause and negligence."
The trial court sustained Wright Contracting Company's separate general demurrer and struck the company as a party defendant. Mrs. Waller has brought a direct bill of exceptions, in which she names Wright Contracting Company and William Earl Tuggle as parties defendant in error, to have the judgment on Wright Contracting Company's general demurrer reviewed.
From a purported cross-bill of exceptions, brought by William Earl Tuggle to this court, it appears that Tuggle filed separate objections to certain amendments offered to the petition and separate general and special demurrers to the petition as finally amended, which, with one exception, the trial court overruled, and Tuggle seeks to assign error on those rulings and have them reviewed by this court.