Letton v. Kitchen

142 S.E. 658, 166 Ga. 121, 1928 Ga. LEXIS 230
CourtSupreme Court of Georgia
DecidedMarch 14, 1928
DocketNo. 6179
StatusPublished
Cited by18 cases

This text of 142 S.E. 658 (Letton v. Kitchen) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Letton v. Kitchen, 142 S.E. 658, 166 Ga. 121, 1928 Ga. LEXIS 230 (Ga. 1928).

Opinions

Hines, J.

Charlotte Louise Kitchen, by her father as next friend, brought suit against W. H. Letton, W. W. Daniel, and Mrs. W. W. Daniel, for the recovery of damages for personal injuries. In her petition she makes this case. She was an infant [122]*122of seven months at the time she was run over and hurt. When injured she was in a baby-carriage which was being pushed by a nurse on the sidewalk of Gordon street. She was injured at the intersection of Gordon and Queen streets in the City of Atlanta. A truck of W. H. Letton, driven by his servant, and an automobile driven by Mrs. Daniel, were being driven east along Gordon street. Mrs. Daniel, whose automobile was following the truck, attempted to pass the truck on the right, at or near the intersection of these two streets. At the same time Letton’s truck turned to the right, attempting to turn from Gordon street into Queen street. Mrs. Daniel then swerved and ran her automobile upon the sidewalk of Gordon street, and struck and severely injured petitioner as she was then being pushed in her carriage by her nurse along this sidewalk.' Mrs. Daniel was crowded or forced upon the sidewalk by the attempt of the driver of the truck to turn from Gordon street into Queen street. The truck was being driven at a speed of twenty-five miles per hour, in violation of an ordinance of the City of Atlanta, which prohibited the driving of a truck at a speed greater than fifteen miles per hour. The driver of the truck, before attempting to malte a right turn from Gordon street into Queen street, did not extend his arm at an angle above the horizontal, as is required by an ordinance of said city; he did not have his truck under control; and he approached the intersection of these two streets at a speed greater than ten miles per hour. Petitioner alleges that these acts of negligence contributed to and were the proximate cause of the injuries sustained by her.

Mrs. Daniel was driving her automobile at a speed of thirty miles per hour, in violation of a city ordinance which prohibited an automobile being driven at a rate of speed greater than twenty-five miles per hour. At the time of the injury she was attempting to pass the truck at the right, which was in violation of a city ordinance requiring trucks and automobiles to pass each other on the left. She failed to give audible warning to the driver of the truck of her intention to pass it, in violation of a city ordinance which requires that the driver of a vehicle overtaking another one going in the same direction, shall give, before passing, audible warning to the driver of the latter of the intention of the former to pass. She further undertook to pass this truck while it was crossing an intersecting street, without being directed so to do by a [123]*123police officer or an operator of a street-car when snch car was standing still, in violation of an ordinance prohibiting a vehicle from passing an overtaken vehicle at an intersecting street, without such direction. She was running said automobile at a negligent rate of speed at the time and place and under the circumstances attending such injury, and in driving said automobile upon the sidewalk. These acts of negligence of Mrs. Daniel are alleged to have contributed to and to have been the proximate cause of the injuries to the plaintiff.

Letton demurred to the petition, upon the ground that the acts of negligence charged to his' servant in driving his truck were not the proximate cause of the injuries sustained by this child. The trial court overruled his demurrer, and this judgment was affirmed by the Court of Appeals. Letton v. Kitchen, 37 Ga. App. 111 (139 S. E. 155). The case is in this court upon certiorari to review this judgment of the Court of Appeals.

Both defendants were guilty of negligence per so. Mrs. Daniel was driving her automobile at a speed of thirty miles per hour, in violation of a city ordinance which prohibited such speed. She was attempting to pass the truck on the right side, which was a violation of a city ordinance requiring trucks and automobiles to pass each other on the left. She failed to give warning of her intention to pass the truck, in violation of a city ordinance which provides that a vehicle overtaking another vehicle going in the same direction shall first give audible warning. She further -undertook to pass the truck while it was crossing an intersecting street, without being directed to do so by a police officer or by the operator of a street-car when standing still, in violation of a city ordinance. Thus she was negligent per se in these several particulars. The petition further alleges that she was negligent in driving her automobile upon the sidewalk, whereby petitioner was struck, run over, and seriously injured. Clearly, under these allegations of the petition, which must be taken to be true upon demurrer, petitioner was injured by the negligence of the driver of the automobile.

The driver of the truck also was negligent per se. The truck was being driven at a speed of twenty-five miles per hour, in violation of an ordinance of the City of Atlanta which prohibited the driving of a truck at a speed greater than fifteen miles per hour. [124]*124The driver of the truck, before attempting to make a right turn from Gordon street into Queen street, did not extend his arm at an angle above the horizontal, as is required by an ordinance of the city, and thus he was negligent per se. The petition further alleges that the driver of the truck was negligent because he did not have it under control, and because he approached the intersection of these streets at a speed greater than ten miles per hour, in violation of a State statute regulating the operation of automobiles upon public highways. Were all or any of these acts of negligence the proximate cause of the injury sustained by the infant petitioner? We do not think the fact that the truck was being driven in violation of the speed ordinance was the proximate cause of the injury sustained by petitioner. The truck was traveling ahead of the automobile, and the faster it traveled the more was the danger of a crash between it and the automobile decreased, and the necessity for the driver of the automobile to swerve from the street onto the sidewalk was likewise lessened. We do not think that the failure of the driver to have his truck under control was the proximate cause of the injury sustained by petitioner. This lack of control in no way contributed to her injuries. In Shannon v. Martin, 164 Ga. 872 (139 S. E. 671), the majority of the court held that the provisions of the act of August 15, 1921 (Ga. L. 1921, p. 255), relating to the speed of motor-vehicles upon approaching or traversing intersecting highways, do not apply to intersecting streets of a city. So the approach of the truck to the intersecting street at a greater speed than ten miles per hour can not be held to be negligence per se; but conceding that the jury might find that the rate of speed at which the truck approached this intersection was negligent, we do not think that such negligence was the proximate cause of the injury to plaintiff. It tended rather to lessen the dangers of such injury, as we have pointed out above.

We come then to consider the only other act of negligence charged to the driver of the truck, and that is, that he failed to give the proper signal of his intention to make a right turn into the intersecting street.

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Bluebook (online)
142 S.E. 658, 166 Ga. 121, 1928 Ga. LEXIS 230, Counsel Stack Legal Research, https://law.counselstack.com/opinion/letton-v-kitchen-ga-1928.