Opinion
47723, 47724.
ARGUED JANUARY 4, 1973.
DECIDED FEBRUARY 2, 1973.
Action for damages. DeKalb Superior Court. Before Judge Peeler.
Peek, Whaley Haldi, William H. Whaley, Henning, Chambers Mabry, for appellants.
Gambrell, Russell, Killorin, Wade Forbes, David A. Handley, Robert B. Wedge, for appellee.
Husband and wife plaintiffs in actions for personal injury to the wife appeal from the grant of summary judgment for one of the defendants, Shepherd Construction Company.
Plaintiff-wife was injured when a DeKalb County asphalt truck collided with and overturned upon her automobile. There seems to be no dispute that the immediate, factual cause of the occurrence was a total failure of the truck's brakes due to overloading. The issue involved in the motion for summary judgment is one of applying the facts to the concept of proximate cause, i.e., whose acts or omissions, either solely or concurrently, were responsible for the overloading? The defendants are the truck driver, DeKalb County and Shepherd Construction Company, owner of the asphalt plant where the driver had just filled his truck. This defendant contends that the undisputed facts show that it had no control over, nor responsibility for, the loading of the truck — that it had no knowledge of the load capacity of any truck and that the amount of asphalt dropped into any truck was a matter for the sole determination of its driver.
We do not agree that the facts demand this conclusion. The driver testified on deposition that he had no instructions on how much to pick up — just a "load"; that he did not know the safe maximum capacity of the truck; that as a matter of practice he merely drove under the chute and waited until the truck was "full"; that he did not know how many 3-ton batches it took to "fill" it; and that he more or less relied upon the mix operator up above to stop sending it down when the truck was "full."
The mix operator testified that he did not know the capacity of any given truck; that the drivers did not ask him for any specified amount; that he did not watch the trucks but just kept mixing and dumping 3-ton batches until the truck below drove off; and that if a truck stayed there, he would probably fill it to overflowing. Both men agree that they had no verbal contact with one another during the loading process, nor any other form of signal. Expert testimony established that the overload was at least 5,900 lbs. over maximum safe capacity. It is also undisputed that Shepherd and the county had no agreement with one another concerning loading practices and responsibility, nor had they issued any meaningful instructions to their employees on the subject.
Based on the record upon summary judgment, there are jury questions of whether Shepherd's loading procedure was negligent, whether it was a concurring proximate cause of the overloading and whether this was the proximate cause of the injury.
Judgment reversed. Evans and Clark, JJ., concur.