Opinion
40669.
DECIDED SEPTEMBER 11, 1964. REHEARING DENIED SEPTEMBER 23, 1964.
Action for damages. Fulton Superior Court. Before Judge Pharr.
James E. Hardy, for plaintiff in error.
Sidney F. Wheeler, Charles A. Moye, Jr., Poole, Pearce Cooper, Edwin Pearce, Martin H. Ruben, Greg Loomis, Frank Love, Jr., contra.
The trial court erred in sustaining the general demurrer and the motion to dismiss in the nature of a general demurrer of the two defendants to the petition.
DECIDED SEPTEMBER 11, 1964 — REHEARING DENIED SEPTEMBER 23, 1964.
S. Kelly Johnson brought suit against Gulf Oil Corporation. James Blakely and Preston L. Holland seeking recovery for injuries received by him when an automobile driven by Preston L. Holland ran into the rear of plaintiff's automobile. The petition, in describing the location and the collision alleged:
"1. That the defendants herein are: (a) Gulf Oil Corporation, a foreign corporation organized under the laws of the State of Pennsylvania, but with an agent for service in Fulton County, Georgia, Mr. Charles LeShanna, upon whom service can be perfected. (b) James Blakely, who is a resident of Fulton County, Georgia, and subject to the jurisdiction of this court, and may be served at 1975 Sylvan Road, S.W., Atlanta, Fulton County, Georgia; and, (c) Preston L. Holland, who lives at 2826 Browns Mill Road, Atlanta, Fulton County, Georgia, and he is subject to the jurisdiction of this court.
"2. That defendants have injured and damaged plaintiff in the amount of $45,000.00 by reason of the facts more fully alleged hereinafter.
"3. That on June 29, 1962, Sylvan Road was a public street in Atlanta, Fulton County, Georgia, and ran in a general northerly to southerly direction.
"4. That on said date, Perkerson Road was a public street in Atlanta, Fulton County, Georgia, and ran in a general south-easterly to northwesterly direction.
"5. That on said date, said Perkerson Road and Sylvan Road intersect each other in Atlanta, Fulton County, Georgia, and will be referred to hereinafter as `said intersection'.
"6. That on said date, just north of `said intersection' said Sylvan Road and Astor Avenue formed a `T' type intersection in Atlanta, Fulton County, Georgia, and the City of Atlanta, Georgia, previous to said date installed a traffic control light at the intersection of Sylvan Road and Astor Avenue.
"7. That on said date at approximately 4:15 p. m., Richard C. Hall was driving a 1960 Chevrolet automobile and came to a stop in obedience to the traffic control light at Astor Avenue and Sylvan Road, facing said Chevrolet automobile in a northerly direction on said Sylvan Road.
"8. That at said time and place, plaintiff was driving a 1957 Ford automobile in a northwesterly direction on said Perkerson Road and brought said Ford automobile to a complete stop upon said Perkerson Road in obedience to a stop sign erected at the intersection of Perkerson Road and Sylvan Road.
"9. That at said time and place, plaintiff drove said Ford automobile forward into the intersection of Sylvan Road and Perkerson Road, and stopped to the rear of the automobile driven by Richard C. Hall, which was then and there stopped on Sylvan Road at said traffic control light.
"10. That at said time and place, defendant Preston L. Holland was driving a 1962 Ford automobile in a northwesterly direction on said Perkerson Road, but immediately behind the vehicle driven by plaintiff.
"11. That at said time and place, defendant Preston L. Holland drove the front end of said 1962 Ford automobile into the intersection of Sylvan Road and Perkerson Road and forward into the rear of the vehicle driven by plaintiff, knocking the vehicle driven by plaintiff forward into the vehicle driven by Richard C. Hall.
"12. That at said time and place, the vehicle plaintiff was driving was damaged and plaintiff was thrown around in the vehicle she was driving, and plaintiff was injured as will be more fully alleged hereinafter.
"13. That at said time and place, it was daylight, the streets were dry, and there was nothing to prevent defendant Preston L. Holland from seeing the vehicle driven by plaintiff.
"14. That at said time and place, defendant Preston L. Holland, failed to keep his said 1962 Ford automobile under immediate control.
"15. That at said time and place defendant, Preston L. Holland, failed to keep an immediate lookout ahead in the direction he was driving.
"16. That at said time and place, said Sylvan Road and Perkerson Road was in heavy use by the public, including plaintiff, Richard C. Hall and defendant Preston L. Holland.
"17. That at said time and place, plaintiff could not drive forward and was free from fault.
"18. That at said time and place, defendant Preston L. Holland, was negligent in the following particulars: (a) By failing to control the speed of said 1962 Ford automobile as was necessary to avoid colliding with the rear of the vehicle driven by plaintiff, in violation of Georgia Code Section 68-1626 (a), which plaintiff charges is negligence per se; (b) By failing to stop his vehicle before crashing into the rear of the vehicle driven by plaintiff; (c) By failing to have his vehicle under immediate control at said time and place; (d) In failing to keep a proper lookout to his immediate front at said time and place. (e) By negligently driving his vehicle in such a manner so as to crash into the rear of the vehicle driven by plaintiff. (f) By driving said vehicle into the rear of the vehicle in which petitioner was driving, which was then and there stopped in a line of traffic, and inflict upon petitioner severe injuries as set forth herein. (g) By negligently driving his vehicle into the rear of the vehicle driven by plaintiff while looking aside and away from the direction in which he was driving. (h) By negligently following the vehicle driven by plaintiff more closely than was reasonable and prudent, taking into consideration the actual and potential hazards then existing, in violation of Georgia Code § 68-1641, which plaintiff charges is negligence per se.
"19. That at said time and place defendant Gulf Oil Corporation and defendant James Blakely, had a Gulf Service Station located at 1975 Sylvan Road that was operated by defendant James Blakely, and said service station is located just south of the intersection of Perkerson Road and Sylvan Road, being a distance of approximately 100 feet south of said intersection.
"20. That at said time and place. defendant James Blakely and his employees, and the agents, servants and employees of defendant Gulf Oil Corporation made loud noises by blowing whistles and horns to attract the attention of the motoring public traveling along Sylvan Road and Perkerson Road.
"21. That at said time and place, the agents, servants and employees of defendant Gulf Oil Corporation and James Blakely. and the agents, servants and employees of James Blakely blew whistles and shouted and otherwise made loud noises for the purpose of attracting attention and customers into said Gulf service station.
"22. That at said time and place, the agents, servants, and employees of defendant Gulf Oil Corporation and James Blakely and defendant James Blakely, blew whistle very loud in said Gulf Service Station and this loud whistle and noise attracted the attention of defendant Preston L. Holland, while still driving forward, looked away from the direction in which he was driving and in the direction of said loud noise and whistle blowing and drove said 1962 Ford automobile forward into the rear of the automobile driven by plaintiff which was then and there stopped as hereinbefore alleged.
"23. That at said time and place, defendants Gulf Oil Corporation and James Blakely knew that the loud noises and whistle blowing would attract the attention of drivers of vehicles and that their attention would be attracted away from the street and the direction of travel and towards said Gulf Service Station.
"24. That at said time and place the agents, servants and employees of defendant Gulf Oil Corporation was well known to defendant Gulf Oil Corporation and said agents, servants and employees are still known to defendant Gulf Oil Corporation but is not known to plaintiff.
"25. That the agents, servants and employees of defendant James Blakely, at said time and place, is well known to defendant James Blakely, but is not known to plaintiff.
"26. That at said time and place, defendant Gulf Oil Corporation, acting through its agents, servants and employees was negligent in the following particulars: (a) In blowing whistles in a service station located within 100 feet of the intersection of Sylvan Road and Perkerson Road and making loud noises to attract drivers of motor vehicles traveling along said Sylvan Road and Perkerson Road.
"27. That at said time and place, defendant James Blakely, and his agents, servants and employees were negligent in the following particulars: (a) In blowing whistles in said service station located within 100 feet of the intersection of Sylvan Road and Perkerson Road and making loud noises to attract drivers of motor vehicles traveling along said Sylvan Road and Perkerson Road."
Gulf Oil Corporation filed general and special demurrers to the petition and James Blakely made an oral motion to dismiss plaintiff's petition. The trial court sustained Gulf Oil Corporation's general and special demurrers and sustained James Blakely's oral motion to dismiss. The plaintiff brought the case to this court assigning error on the above ruling, whereby Gulf Oil Corporation and James Blakely were discharged as defendants and the action as to them dismissed.
1. The question to be determined on the general demurrer is whether the allegations that Gulf Oil Corporation and James Blakely made loud noises by blowing whistles and horns to attract attention of the motoring public and thus attract customers into their service station and that the said defendants knew that the loud noises and whistle blowing would attract the attention of the drivers of vehicles and that their attention would be attracted away from the street and the direction of travel and toward said service station operated by said defendants and that they were negligent in so doing, is sufficient to constitute a cause of action, based on negligence, against said defendants. While the petition, as above stated, alleges that the defendants knew the making of loud noises would attract the attention of motorists away from the roadway and the direction from which they were driving, it does not expressly allege that the defendants knew, or in the exercise of ordinary care should have known, that the attracting of the attention of drivers in such manner would be likely to cause injury or damage to persons or vehicles on the highway. Actionable negligence involves foreseeability of injury to others from the act done. In other words, a person is chargeable with actionable negligence if, from all the facts and circumstances, he should have known of the probable danger and injury that might result to others from his acts. Hulsey v. Hightower, 44 Ga. App. 455, 459 ( 161 S.E. 664). While there is no express allegation as to foreseeability of injury to others on the part of the defendants, it is our opinion that an inference of such foreseeability is demanded from the allegations made. If one can foresee that his acts will attract the attention of motorists away from the roadway and from the direction in which they are traveling when such motorists are upon a muchly traveled highway and approaching an intersection with a signal light, such situation not only authorizes but demands the inference that such persons knew, or should have known, that their acts, as alleged, would likely cause injury to others. Cases holding that one is not bound to anticipate the criminal act of another, Andrews Co. v. Kinsel, 114 Ga. 390 (2) ( 40 S.E. 300), 88 ASR 25), Belding v. Johnson, 86 Ga. 177 ( 12 S.E. 304, 11 LRA 53), Bowers v. Southern R. Co., 10 Ga. App. 367 (3), 373 ( 73 S.E. 677), Gulf Oil Corp. v. Stanfield, 213 Ga. 436 ( 99 S.E.2d 209), are not applicable to the present case for the reason that the alleged acts of the negligence of the third defendant, Holland, which constitute a violation of criminal statutes relating to motor vehicles, either are (1) not the type of crimes involved in the above cases, which are crimes involving moral turpitude, or (2) the acts of negligence alleged did not sustain a causal relation to the criminal act, as is true in the instant case. We conclude, therefore, that the trial court erred in sustaining the general demurrer of Gulf Oil Corporation and the oral motion of James Blakely. See, in this connection, Hicks v. M. H. A., Inc., 107 Ga. App. 290 ( 129 S.E.2d 817); Harris v. Atlantic C. L. R. Co., 25 Ga. App. 835 ( 104 S.E. 924); Southern R. Co. v. Tankersley, 3 Ga. App. 548 ( 60 S.E. 297).
2. While error is assigned on the sustaining of the special demurrers of Gulf Oil Corporation, plaintiff in error, in his brief, argues only the grounds of general demurrer and does not insist on his assignment of error on the sustaining of the special demurrers. Under these circumstances, the assignment of error on the sustaining of the special demurrers will be considered as abandoned. However, even considering the allegations specially demurred to as stricken, there are sufficient allegations remaining in the petition to set forth a cause of action.
Judgment reversed. Frankum and Russell, JJ., concur.