Opinion
35914.
DECIDED NOVEMBER 23, 1955. REHEARING DENIED DECEMBER 13, 1955.
Action for damages. Before Judge Perryman. McDuffie Superior Court. August 8, 1955.
Randall Evans, Jr., for plaintiff in error.
Hull, Willingham, Towill Norman, Knox Neal, contra.
The petition did not state a cause of action based either on ordinary or gross negligence against the resident defendant and the court did not err in sustaining the general demurrer of the resident defendant and in sustaining the demurrer of the two nonresident defendants on the grounds of lack of jurisdiction and in dismissing the action as to all defendants.
DECIDED NOVEMBER 23, 1955 — REHEARING DENIED DECEMBER 13, 1955.
Miss Willa Young sued James Alfred Truitt, Guy Koger and Miss Egrus Young for damages arising out of an automobile collision. The defendants Truitt and Koger are residents of Wilkes County, Georgia. The defendant Young is a resident of McDuffie County, Georgia. The action was brought in McDuffie Superior Court. The court sustained Miss Egrus Young's general demurrer on the merits of the action and dismissed the action as to her. The court then sustained the demurrers of the defendants Truitt and Koger on jurisdictional grounds and dismissed the action as to them. To these judgments the plaintiff excepts.
For the consideration of the case it is necessary only to consider the allegations of negligence as to the defendants Truitt and Young. The petition, as amended, in substance alleged: that on or about July 27, 1954, the plaintiff was riding in an automobile being driven by Miss Egrus Young in a northerly direction along U.S. Highway No. 78 approximately 8 or 9 miles north of Thomson, Georgia; that the plaintiff's presence in the automobile was through the invitation of Miss Egrus Young; that said automobile was traveling up-grade at a speed of approximately 35 miles per hour, on its own right-hand side of the center of the paved portion of the highway. As the automobile was traveling up-grade, Miss Egrus Young, through the rear-vision mirror, saw the reflection of a milk truck approaching from the rear and rapidly overtaking her automobile, the truck traveling in the same direction as Miss Young's automobile and at a rapid and illegal rate of speed of approximately 65 miles per hour and on the same side of the highway as Miss Young's automobile; that the milk truck was being driven by the defendant Truitt; that as the truck continued to gain on Miss Young's automobile without slackening its dangerous rate of speed, Miss Egrus Young became aware of the situation and of the danger thus created; that Miss Egrus Young realized that unless she increased the speed of her automobile, or turned it to the right, the truck, which was rapidly overtaking her automobile, would collide with it, but despite said knowledge she did not increase her speed nor did she turn to the right, although she was 100 yards ahead of the truck at the time, with ample opportunity to turn to the right, or to increase her speed, either of which would have avoided a collision with said truck; that on the right-hand side of the paved part of the highway there was a dirt shoulder with ample room for an automobile and upon which Miss Egrus Young could have driven her automobile had she turned same to the right to avoid the consequences of the recklessness, wantonness and dangerous conduct of the defendant Truitt; that in spite of the awareness of Miss Egrus Young of the imminent peril in which her automobile and its occupants had been placed by the recklessness of the defendant Truitt, and despite the fact that she could have driven her automobile completely off the highway and onto the dirt shoulder in order to escape the effects of the defendant Truitt's recklessness and to prevent a collision between the automobile and truck, she did not do so, but she took her foot off the accelerator momentarily, whereby her automobile slowed its speed from approximately five miles per hour, thus reducing such speed from approximately 35 miles per hour to 30 miles per hour, this being done without any signal, warning or notice thereof; that as the defendant Truitt drove his truck towards the rear of Miss Egrus Young's automobile he turned the steering wheel sharply to his left, although he was approaching the crest of a hill and the way ahead was not clear so he could drive safely to the left, but because of the excessive speed of the truck, and because Miss Egrus Young suddenly reduced the speed of her automobile without signal or notice, Truitt was unable to drive to the left without colliding with Miss Young's automobile, and in the maneuver the right front of the truck struck the left rear of the automobile causing the automobile to overturn, which inflicted serious injury and damage on the plaintiff; that the negligence of the defendants acted concurrently in causing the collision and the acts of negligence of each defendant were material factors in producing, and were the proximate cause of, the collision; that the defendant Truitt was particularly negligent as follows: in approaching the plaintiff as she was riding in said automobile and in overtaking her from the rear at the unlawful rate of speed of approximately 65 miles per hour; in running into the automobile and causing it to overturn; in not keeping a lookout ahead for other traffic on the highway; in not keeping the truck under control as it approached the car in which the plaintiff was riding; in not applying the brakes on the truck and thus avoiding a collision between the truck and the automobile; in not reducing the speed of the truck and controlling same after it became apparent that the truck was overtaking the automobile at said rapid and illegal rate of speed; in running into and against the automobile and overturning it and injuring the plaintiff under the circumstances herein set out. The plaintiff alleged the following specific acts of negligence as to the defendant Miss Young: in failing to exercise ordinary care to prevent injury to the plaintiff after it became apparent that she was in imminent peril, in failing to drive her automobile to the right and onto the dirt shoulder of the highway, although she had ample opportunity to do so; in that, after the defendant Truitt's gross negligence and wanton conduct had placed the safety of the plaintiff in peril through his driving the truck at a rapid and dangerous rate of speed towards the rear of Miss Egrus Young's automobile without slackening speed, and after Miss Egrus Young had become aware of the imminent peril to the plaintiff, she failed to exercise all ordinary and reasonable care to protect the plaintiff from danger, and failed to drive her automobile to the right-hand side of the highway and onto the dirt shoulder in order to escape being run down by the oncoming truck and thus violated the "last-clear-chance doctrine"; in momentarily taking her foot off the accelerator, thereby permitting the speed of the automobile to be slowed from approximately 35 miles per hour to approximately 30 miles per hour, immediately before the collision; in failing to run her automobile to the right when she became aware that unless she did so a collision would result; in suddenly reducing the speed of her automobile after she became aware that the truck was rapidly overtaking her and that to reduce speed would cause a collision to result; in not increasing the speed of her automobile after she became aware that unless said speed was increased the overtaking truck would collide with her automobile.
The court did not err in sustaining the general demurrer of Miss Egrus Young and in sustaining the demurrers as to the other nonresident parties defendant.
1. Assuming that under the allegations of the petition Miss Young owed the plaintiff the duty to exercise ordinary care, the allegations of the petition show no failure on Miss Young's part to do so. The petition does not allege facts showing that Miss Young violated Ga. L. 1953, Nov.-Dec. Sess., p. 588 (Code, Ann. Supp., § 68-1647 (c)). In the first place, construing the petition against the pleader, even if she technically violated the provisions of the section, the violation was not negligence as to the plaintiff or the truck approaching from the rear for the reason that the truck at the time was 100 yards behind Miss Young's automobile. Since the truck was not immediately behind Miss Young's car, the driver of the truck could have discovered and avoided whatever negligence Miss Young might have been guilty of in slowing the speed of her car. Even construing the petition in the pleader's favor that Miss Young slowed down her automobile five miles per hour by taking her foot off the accelerator when the truck was a less distance than 100 yards behind her, if the defendant Truitt was operating his truck at such a speed and at such a close distance behind Miss Young's car that he could not avoid a collision with the rear of her car when it slowed 5 miles per hour, then such acts on his part were the sole proximate cause of the collision. In the second place, the petition does not allege a sudden slowing down in the contemplation of the law. In the third place, the facts alleged show that both the truck and Miss Young's car were approaching the crest of a hill where the way ahead was not clear for the truck to pass Miss Young and show that the circumstances authorized, if they did not require, Miss Young to reduce her speed in some degree at the time and place. Ga. L. 1953, Nov.-Dec. Sess., p. 578 (Code, Ann. Supp., § 68-1626, subsection 3 (c)). Under the facts alleged Miss Young had a right to presume that the driver of the truck would obey the law and not attempt to pass her approaching the crest of a hill where the way was not clear and would reduce the speed of the truck to avoid a collision. Reid v. Raper, 86 Ga. App. 277, 279 ( 71 S.E.2d 735). The facts alleged show no liability on the part of Miss Young under the doctrine of the last clear chance. They show only that the sole proximate cause of the plaintiff's injuries was either the negligence of the driver of the truck alone or the negligence of the driver of the truck coupled with the negligence of the defendant Koger. No negligence on the part of Miss Young is alleged which anywhere within the realm of reason could be said to be a concurring proximate cause of the collision.
The court did not err in sustaining the demurrers and in dismissing the action as to all defendants.
Judgments affirmed. Quillian and Nichols, JJ., concur.