Houston v. Taylor

179 S.E. 207, 50 Ga. App. 811, 1935 Ga. App. LEXIS 285

• Court: Court of Appeals of Georgia
• Decided: February 21, 1935
• Docket: 23824, 23825
• Status: Published

Opinions

Broyles, C. J.

F. Y. Taylor, as next friend for his minor son, Ficken Taylor, and for himself individually, brought separate suits against William R. Houston, alleging, in. substance, that Ficken Taylor and another boy, Julian Dooley, were standing on a street corner in Augusta and waiting for a street-car; that Houston suddenly stopped his automobile on a down-hill slant, in the middle of the street, without any warning to the automobile drivers directly behind him, and invited the boys to ride; that Dooley ran out and got in the defendant’s car, and Fickcn Taylor also ran out and had one foot on the running board of the defendant’s car in the act of getting in when a car driven by one Hammond came from the rear to the right of the defendant’s car and caught the extended leg of Ficken Taylor between his car and the car of the defendant, resulting in described injuries to Taylor; that Hammond’s act in trying to pass from the rear to the right of the defendant’s car was caused by the emergency created by the defendant in so stopping; and that the “injury complained of was caused by the gross negligence of defendant in stopping his automobile suddenly, and without warning, in the middle of the street, and at a point where the hill was at its greatest slant.”

The acts of negligence as specifically set forth in the amendment to the petition are as follows: “(a) By defendant suddenly stopping his automobile without any notice, signal or warning to the drivers of automobiles being driven directly behind defendant’s automobile, and in violation of paragraph (e), section 8, article III of the Traffic Code of the City of Augusta for 1932, which reads as follows: ‘Before a vehicle retards its speed or comes to a stop his (or her) arm shall be extended 45 degrees downward from the left side of the vehicle for a sufficient time to apprise pedestrians, approaching or following vehicles, of the intended stop.’ (b) By defendant suddenly stopping his automobile in the middle of the street and where the hill was at its greatest slant, which made it difficult, and almost impossible, for the automobiles, being driven directly back of the defendant’s automobile, to be quickly stopped, and in violation of section 53, article vu of the Traffic Code of the City of Augusta, 1932, which reads as follows: ‘Any person who drives any vehicle upon a highway carelessly and heedlessly in wilful or wanton disregard of the rights or safety of others, or without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property, shall be guilty of reckless driving.’ (c) By defendant stopping his car in a roadway other than parallel with the edge of the roadway, and heading in the direction of traffic, and with the curb-side wheels [not] within six inches of the edge of the roadway, and in violation of section 34, article vi of the Traffic Code of the City of Augusta for 1932, which reads as follows: ‘Except when necessary in obedience to traffic regulations or traffic signs or signals, the driver of a vehicle shall not stop, stand or park such vehicle in a roadway other than parallel with the edge of the roadway, heading in the direction of traffic, and with the curb-side wheels of the vehicle within six inches of the edge of the roadway.’ . . (d) By creating an emergency which caused Eicken Taylor to act quickly and without time for thoughtful reasoning, [and] prevented Keene Hammond from quickly stopping his car and made it necessary for him to drive to the right of defendant’s car, instead of to the left where the rules of the road required him to drive, and thereby compelled said Keene Hammond to run into Eicken Taylor and crush and break his leg.”

The damages sought by the boy were for physical pain and mental anguish, and his father sought to recover for expense incurred as a result of the injury. The two cases were tried together, and a verdict and judgment were rendered for the plaintiff in each suit. In each case the defendant assigns error on exceptions pendente lite to the overruling of his demurrer to the petition; on exceptions pendente lite to the refusal to grant a mistrial because of alleged prejudicial remarks of counsel for plaintiffs in his argument to the jury; and on the overruling of the defendant’s motion for a new trial.

In each case the petition as amended set out a cause of action, and was not subject to any ground of the demurrer interposed, and the court properly so held. '

Exceptions pendente lite, and also the only special ground of the motions for a new trial, complain of the following alleged prejudicial remarks of counsel for plaintiffs: In commenting be-' fore the jury on the distance and speed of Hammond’s car, “James S. Bussey, of counsel for defendant, said that Dr. Houston had taught him arithmetic at the Biehmond Academy, and that if Keene Hammond’s car was going at a rate of speed of 20 miles per hour, it was making 105,600 feet per hour, which divided by 3600 would make the car proceed at approximately 30 feet in one second; and therefore to cover the distance between his car and defendant’s car, viz. 10 feet, would require approximately one third of a second.” W. Inman Curry, of counsel for plaintiffs, in his concluding argument to the jury, stated: “Dr. Houston was also my teacher at the Richmond Academy. He taught me reading, writing, and arithmetic, and he taught me no such arithmetic as my brother was talking about. He didn’t teach me how to calculate the speed, of an automobile in hundredths of seconds. My brother didn’t get those figures from Dr. Houston. Whenever you hear a man talking about measuring speed of an automobile by hundredths of a second, those figures were not gotten up by Dr. Houston, but were gotten up by a good insurance man.” Counsel for defendant insists that this was an effort to inject the insurance feature into the case, and was prejudicial to the defendant. There was no evidence that Dr. Houston had taught Mr. Bussey, of counsel for defendant, arithmetic at the Richmond Academy, and his argument in this respect was not based on the evidence; and it was in reply to this argument of counsel for the defendant that counsel for plaintiffs made the remarks of which complaint is made. In replying to the argument, counsel for plaintiffs made no charge that any insurance carrier was involved in the case, but simply stated that the figures were gotten up by a good insurance man. This statement could reasonably be construed as meaning merely that as the calculation of the speed of the automobile was somewhat intricate, it must have been made by an expert at figures. While it probably would have been best for counsel to have omitted making such statement, we can not hold that he had no right to reply as he did to the argument of counsel for the defendant, or that the remark in question prejudiced the jury against the defendant; and the refusal of the court to grant a mistrial was not harmful error.

As shown by the foregoing statement of facts and our ruling on the demurrers, the petitions charged gross negligence on the part of the defendant Houston; and the record discloses ample evidence to authorize the jury to find that the charge had been sustained. There was evidence to show that the place where the defendant stopped was a street where traffic was unusually heavy, and particularly so when school had just turned out, as in the instant case; that the defendant stopped suddenly, on a down-hill slant, in the middle of the street, without holding out his hand or giving any other warning to those driving cars directly behind him, thus making it practically impossible for the operator of a car in close proximity to the rear of the defendant’s ear to avoid a collision ; that as a result of this act of the defendant the driver of the car immediately behind the defendant, acting in an emergency created by the defendant, attempted to pass the defendant on the right side, and the plaintiff, who was entering the defendant’s car, was caught between the two cars and injured; that in so stopping the defendant violated three sections of the Traffic Code of the City of Augusta, viz., one requiring him to extend his arm downward on the left side of the automobile before stopping the same; one prohibiting careless or heedless driving in disregard of the safety of others or in such a manner as to endanger person or property; and one requiring him to stop within six inches of the curb. There is no merit in the contention of the plaintiff in error that these ordinances are for the benefit of drivers to the rear of the car only, and that the petitions and the evidence failed to show that the defendant, in violating the ordinances, had breached any duty which he owed to the plaintiff. Approaching cars traveling towards the front of the defendant’s car could be affected by a violation of these regulations, as well as a person entering a car as in the instant ease. Defendant’s car being stopped suddenly in the middle of the street might confuse the driver of such an approaching car, and a car passing it on the left from behind would necessarily be thrown directly in the path of any such approaching car. Moreover, section 8 of the ordinance provides that it is “to apprise pedestrians, approaching and following vehicles,” and section 53 provides that it is to prevent danger to “any person or property.”.

There is no merit in the contention of the plaintiff in error that the injury was caused by the intervening negligence of Keene Hammond in trying to pass the defendant’s car on the right side, there being evidence to authorize the jury to find that Hammond exercised good judgment under the existing circumstances. Defendant had created the emergency by stopping suddenly, and, without warning to those behind him, on a down-hill slant, in the middle of a street where traffic was usually heavy and particularly so at the hour when school had just turned out. Hammond testified that he was within about ten feet of the defendant’s car and going about twenty miles an hour; that when the defendant stopped his car, he (Hammond) saw by looking in his rear-vision mirror that the car immediately in his rear was passing him and the defendant on the left; that if he (Hammond) had attempted to pass', the defendant on the left it would have caused a collision of three cars; that he therefore chose to pass defendant on the right with the hope that running into the curb on the right would help him to stop his car; that he did stop his car before he passed the defendant’s car, though not until the injury to the plaintiff was inflicted. It is true that "if subsequently to the original wrongful act, a new cause intervened, sufficient of itself to stand as the cause of the injury, the former will be considered as too remote. But if the intervening cause and its probable consequences should reasonably have been anticipated by the original wrong-doer as a natural and probable result of the wrongful act, the causal' connection between the wrongful act and the injury is not broken, and an action for resulting damages will lie against the original tort-feasor. A tortious act may have several consequences, concurrent or . successive, for all of which the first tort-feasor is responsible; and a consequence of an original wrong may in turn become the cause of succeeding consequences, and should not be regarded as an efficient intervening cause which will excuse the original cause, so long as it appears that the injury is attributable to the original wrong as a result which reasonably might or ought to have been anticipated and foreseen.” Spires v. Goldberg, 26 Ga. App. 530 (2, 3) (106 S. E. 585). See also Bonner v. Standard Oil Co., 22 Ga. App. 532 (96 S. E. 572); McAfee v. Martin, 34 Ga. App. 247 (129 S. E. 168); Letton v. Kitchen, 37 Ga. App. 111 (139 S. E. 155); Chandler v. Brittain, 48 Ga. App. 361 (172 S. E. 745); Southern Ry. Co. v. Webb, 116 Ga. 152 (42 S. E. 395, 59 L. R. A. 109).

The jury were authorized to find from the evidence that the minor plaintiff, by the exercise of ordinary care, could not have avoided the injury to himself. It is true that if the boy had stayed on the sidewalk he would not have been injured, but the question is not whether it were possible for' him to have avoided the injury, but whether he could have avoided it by the exercise of ordinary care; and whether his negligence (if he were negligent) was equal to, or less, or greater than, the negligence of the defendant. The defendant had stopped suddenly and invited the plaintiff to come and get in the car. Plaintiff naturally did not wish to detain one who was offering to accommodate him, and accordingly he ran towards the car. The jury, according to their verdict, determined that under such circumstances the young plaintiff could not be expected to know or anticipate that Keene Hammond could not pass to the left of the defendant’s car without causing a collision of three ears, or that, in the emergency created by the defendant, Hammond would elect to drive to the right of the defendant’s car instead of to the left. “Circumstances may exist under which forgetfulness or inattention to a known danger may be consistent with the exercise of ordinary care, as where the situation requires one to give undivided attention to other matters, or is such as to produce hurry or confusion, or where conditions arise suddenly which are calculated to divert one’s attention momentarily from the danger.” 45 C. J. 951, § 509. See, in this connection, Gunn v. United Rys. Co., 270 Mo. 517 (2) (193 S. W. 814); Chaney v. Moore, 101 W. Va. 621 (4, 5) (134 S. E. 204).

The questions as to the proximate cause of the injury; whether the defendant was guilty of gross negligence; whether Hammond’s act was such an efficient intervening cause as to excuse the defendant’s negligence; whether Eieken Taylor, by the exercise of ordinary care, could have avoided being injured; and whether his negligence (if he were negligent) was equal to, or less, or greater than, the defendant’s negligence, were, under the pleadings and the evidence, questions for the determination of the jury; and the court in its charge so clearly, fairly, and fully instructed the jury upon all these issues that no assignment of error was made upon the charge. The verdicts were authorized by the evidence, and the refusal to grant new trials was not error.

Judgment affirmed.

MacIntyre, J., concurs. Guerryj J., dissents.