Summary
In Scoggins v. Peggy Ann of Georgia, 87 Ga. App. 19 (73 S.E.2d 79), the petition as amended was held to allege a good cause of action against Peggy Ann of Georgia, Inc.
Summary of this case from Peggy Ann of Georgia, Inc. v. ScogginsOpinion
34238.
DECIDED OCTOBER 16, 1952.
Action for damages; from Bartow Superior Court — Judge Paschall. June 27, 1952.
Jefferson L. Davis, J. R. Cullens, for plaintiff in error.
T. J. Long, Nick Long Jr., contra.
Upon exception to a judgment overruling a general demurrer to a petition, this court reversed the judgment and held that the petition showed that the negligence of the excepting defendant was not the proximate cause of the injuries sued for, but that the negligence of the bus-company driver was the proximate cause thereof; and when thereafter, but before the remittitur from this court was made the judgment of the trial court, the plaintiffs properly amended the petition and alleged facts from which a finding was authorized that such defendant was negligent and that such negligence was a proximate cause of the injuries sued for, said petition was no longer subject to the demurrers as originally urged and on which this court predicated its former ruling, and it was error to dismiss the petition, as amended, on the renewed demurrer thereto.
DECIDED OCTOBER 16, 1952.
James H. Scoggins, James F. Scoggins, Douglas P. Scoggins, Russell L. Scoggins and Mrs. M. M. Adams, as the husband and children surviving the late Mrs. Beulah Scoggins, brought suit for damages in Bartow Superior Court against Southeastern Greyhound Lines Inc., Peggy Ann of Georgia Inc., F. G. Cole and Mrs. F. G. Cole, to recover for the alleged negligent homicide of Mrs. Beulah Scoggins. The petition was dismissed as to the defendants F. G. Cole and Mrs. F. G. Cole. Thereafter, on November 30, 1951, the plaintiffs by amendment struck Southeastern Greyhound Lines Inc. as a party defendant, proceeding against Peggy Ann of Georgia Inc. alone. It appeared from the petition, as amended, that the deceased was a passenger on a Greyhound bus en route to Summerville, Georgia; that when the bus reached a point some six miles north of Cartersville, in Bartow County, there was a designated rest stop, being at a roadside inn operated by Peggy Ann of Georgia Inc., and located on land owned by the defendant, Mrs. F. G. Cole; that this bus station and rest stop were managed by the defendant, F. G. Cole, who was manager and agent of said corporate defendant; that when the bus on which the deceased was a passenger reached this rest stop, the driver informed the passengers that they could leave the bus as this was a rest stop and the bus would remain there a few minutes; that most of the passengers left the bus; that the plaintiff remained on board the bus; that the driver left the bus unattended and entered this inn with the passengers; that the place where said bus had to stop was a "steep incline" and the brakes on the bus failed to hold properly and the bus began moving backwards down said incline; and that the bus driver yelled to the deceased to jump, which she did and was fatally injured. The petition also alleged that Peggy Ann of Georgia Inc. was furnished by the bus company with certain "scotch" blocks for placing under the wheels of busses parked on the steep incline at this bus stop, so that the bus would not roll down the incline, but remain in a firm standing position thereon, and that at the time the deceased was fatally injured these blocks had not been placed under the wheels of this bus. It was also alleged that since these blocks were furnished to the corporation and were kept on its premises, it owed those riding on the busses the duty to see that these blocks were properly used and properly placed in position under the bus wheels so that the busses would not roll down the incline. The plaintiffs amended their petition several times. The defendant, Peggy Ann of Georgia Inc., demurred to the petition as not setting forth any cause of action against it and the trial court overruled this demurrer. To this judgment the defendant, Peggy Ann of Georgia Inc., excepted to this court. This court on April 11, 1952, reversed the judgment of the trial court overruling said general demurrer. Peggy Ann of Georgia v. Scoggins, 86 Ga. App. 109, ( 71 S.E.2d 89). For a more detailed statement of the allegations of the plaintiffs petition and the amendments thereto reference is made to the decision of this case on its former appearance in this court. Before the remittitur from this court reached and was made the judgment of Bartow Superior Court, the plaintiffs again amended their petition, striking from it the allegations to the effect that the bus had commenced to roll backwards down this incline because of defective brakes or because the brakes were not properly applied.
In this amendment the plaintiffs alleged that the driver of the bus left it and entered the inn and sat down and talked with the manager of said corporate defendant, and that this defendant therefore had notice that the bus had arrived and knew of its presence parked outside the inn. It was further set out that at the time the bus driver told the deceased to jump from the rolling bus he was standing in front of the building at said rest stop. It was further alleged that Peggy Ann of Georgia Inc. was negligent in failing to properly "scotch" said bus wheels in a firm standing position after having accepted these blocks from the bus company and having assumed the responsibility of placing them under all busses stopped on said premises at said bus stop and that it was negligent in failing to properly "scotch" the bus on said occasion in that the blocks were the only means whereby a properly equipped and properly functioning bus could be assured of being capable of a firm standing position while parked in the area provided for parking on the steep incline of the south approach to said bus stop. It was further therein set out that, as the owner and operator of said lunch room and bus rest stop, said defendant, Peggy Ann of Georgia Inc., was under the duty to the said Mrs. Scoggins and other passengers in said bus to anticipate that the said bus might, under the force of gravity, roll down the steep incline and injure or kill said Mrs. Scoggins and other passengers on said bus.
The defendant, Peggy Ann of Georgia Inc., renewed its demurrer to the petition of the plaintiffs, as thus amended, and set up that the amendment, filed subsequently to the decision and judgment of this court in this case, was insufficient in law and that the petition, as amended, was insufficient in law to constitute a cause of action against it. The trial court sustained said renewed demurrer and dismissed the petition of the plaintiffs, as thus amended. To this judgment the plaintiffs except to this court.
"Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe." Code, § 105-401. The petition, as last amended, set out facts tending to show that the defendant, Peggy Ann of Georgia Inc., was liable to the plaintiffs under the above Code section. See Williamson v. Southern Ry. Co., 42 Ga. App. 9 ( 155 S.E. 113). It was under the duty of keeping the bus stop and approaches thereto in a reasonably safe condition, and it cannot be said as a matter of law that this defendant had complied with its duty in this regard, when it, with knowledge that the bus, in which the deceased was riding as a passenger, had been stopped on this steep incline, failed and neglected to place under the wheels of this bus these "scotch" blocks, which had been furnished to it for that very purpose, and which blocks had been accepted by Peggy Ann of Georgia Inc. for the purpose of using them to "scotch" wheels of all busses stopping there. Ordinarily questions of negligence, proximate cause, etc., are questions for the jury, under proper instructions from the court. See Southern Railway Co. v. Slaton, 41 Ga. App. 759(3) (154 S.E. 718). This case as now presented is not one where the court should have determined, as a matter of law, that the defendant was not negligent as charged in the petition, as amended. Under the allegations of the plaintiff's petition, as amended, it appeared that the defendant owed to the decedent the duty of maintaining its premises and the approaches thereto in a reasonably safe condition, that this was a regular bus rest stop and the busses that necessarily stopped there had to be parked on this steep incline, that in order for a bus to stand firmly and remain safely parked at this place, it was necessary that "scotch" blocks be placed under the wheels, the defendant having been furnished with and accepted such blocks for that express purpose, that in order to comply with its duty to maintain a safe parking place for the bus in which the decedent was riding and in which she had been invited upon the premises of said defendant at said place, it was necessary that these blocks be placed under the wheels of such bus, and that this defendant, with knowledge that the bus had stopped in front of the rest station, had failed in the performance of its duty in the above regard, resulting in the death of the decedent.
The jury would have been authorized to find that the failure of the defendant to "scotch" the wheels of this bus on this occasion was negligence and that this negligence was a proximate cause of the injury and death to the wife and mother of the plaintiffs. It, therefore, follows that the trial court erred in sustaining the general demurrer and dismissing the plaintiff's petition, as last amended.
But it is insisted that this court having held that under the allegations of the petition when the case was previously before this court (See Peggy Ann of Georgia Inc. v. Scoggins, supra) it appeared that the proximate cause of the death of Mrs. Scoggins was the negligence of the bus company in failing to properly apply the brakes or in having defective brakes so that the bus started rolling backwards and she was fatally injured, being told to jump by said bus driver, and that, therefore, the effect of the amendment did not eliminate this from the plaintiffs' petition and under the decision of this court in that case, the negligence of the bus company and not of this defendant was as a matter of law the sole proximate cause of the death of the decedent, and the petition was still subject to said demurrer. The court further held in that case that the petition, "must be taken as showing that the bus rolled backwards down the incline only because of defective brakes, and that if they had been efficient the injury and death of Mrs. Scoggins would not have occurred." The defendant now contends that the fact that the accident was caused by these defective brakes is still in the case, although the plaintiffs had by their amendment made before the remittitur was entered up in the trial court, eliminated these allegations from their petition, for the reason that this court will take judicial cognizance of the fact that efficient and effective brakes will hold a motor vehicle on an incline, unless some external force be applied, which it did not appear was applied here. See Georgia Highway Express v. Sturkie, 62 Ga. App. 741, 746 ( 9 S.E.2d 683). Therefore, the defendant urges, even though the plaintiff now alleges that the bus began rolling backwards down this incline because the wheels were not checked or scotched by this defendant, if it was under the duty to do so, this court will take judicial cognizance that the bus began rolling backwards because of defective brakes, and that it, therefore, appears, as a matter of law, that the death of Mrs. Scoggins resulted from defective brakes alone and that the failure of this defendant to place the blocks under the bus wheels was not a proximate cause thereof. With this we cannot agree; the question is one for the jury, under all the allegations of the petition, as amended by the plaintiffs, and a finding that this defendant was negligent, as set out by the plaintiffs, and that this constituted a proximate cause of Mrs. Scoggins' death would, if proved, be authorized, See Southern Railway Co. v. Tankersley, 3 Ga. App. 548, 552 ( 60 S.E. 297); Moone v. Smith, 6 Ga. App. 649, 652 ( 65 S.E. 712). It must be kept in mind that when the case was here before the bus company was not a party. And too, it must be kept in mind that the amendment to the plaintiffs' petition filed before the remittitur of this court was made the judgment in the court below, in our opinion materially changed the allegations of the petition against Peggy Ann of Georgia Inc., in that the amendment alleged that the defendant accepted these stop blocks for the purpose of being used to "scotch" all busses stopping on the defendant premises. And that the defendant was negligent in not so using the said blocks and thereby causing or contributing to the proximate cause of the death of the wife and mother.
It follows that the trial court erred in sustaining the demurrer to the petition of the plaintiffs as amended in the trial court after the judgment of this court therein but before the remittitur had been entered up therein.
Judgment reversed. Townsend and Carlisle, JJ., concur.