1. One cannot be charged with negligence in failing to do that which was not within his power to accomplish.
3. To enable the court to rule on whether or not it was error for the judge to refuse to allow an amendment, the record must disclose what amendments the plaintiff proposed to make to the petition.
Ruby May London filed a suit for damages against C. L. Fain Company and Atlanta Transit Company, in Fulton Superior Court.
The petition shows that the transit company was a common carrier of passengers by coach or bus and was engaged in this business on Lee Street at the time of the events connected with the collision referred to.
It was further alleged that Lee Street is a public street in the City of Atlanta running by the east side of Fort McPherson, and is intersected on its west side by Van Buren Avenue about 225 feet from the northeast corner of Fort McPherson; that, at the intersection, Lee Street is straight, slightly down grade, has north- and two south-bound vehicular traffic lanes; that Lee Street was a heavily congested traffic artery of the said city at the intersection; that on November 19, 1951, at about 4:30 o'clock p. m., near the intersection before referred to, an agent of Atlanta Transit Company who was unknown to the plaintiff, while acting within the scope of his employment, was driving a bus of the transit company north on Lee Street in the outside lane of traffic; that Home Demsey was at the time driving a jeep station wagon forty feet directly behind the bus; at the time Lucius Bell, an agent of C. L. Gain Company, was operating a motor vehicle of that company north on the same street in the inside lane "practically alongside" the jeep station wagon; that, while the three mentioned motor vehicles were operating in the position described, though confronted by no emergency requiring him to do so, and without giving any warning, the transit company's driver brought the bus to a sudden and abrupt stop; that the driver of the Fain vehicle instantly saw and knew that Demsey did not have sufficient time to stop the jeep station wagon before striking the rear of the bus, saw and knew that he could not turn the jeep to the right because of an embankment, and the only chance he had to extricate himself from the perilous position that he found himself in, on account of the circumstances related, without injuring himself or other motorists, was to turn the jeep into the inside traffic lane before reaching the bus; that the Fain driver failed to decrease his speed so as to allow Demsey to turn into the lane ahead of the vehicle operated by him, but kept driving at the same speed; that the failure of the Fain Company's driver to slacken the speed of its vehicle forced Demsey, who had greatly accelerated the speed of the jeep, to remain in said outside lane for such a distance that when, in order to avoid colliding with the rear of the transit company bus by turning into the inside lane of traffic, he was forced to turn the jeep into said lane at a sharp angle and at such speed that it was impossible for him to keep the jeep from continuing across the street until the jeep collided with the plaintiff's Plymouth automobile, operated by her, on the west side of the street as she proceeded south on her side of the street; that the collision practically demolished the Plymouth automobile and inflicted certain painful and permanent injuries upon the plaintiff; that the transit company, acting through its agent, was negligent in that, when not confronted by an emergency, it brought the bus to a sudden and abrupt stop without giving any previous signal or warning; that C. L. Fain Company, acting by and through the agency of its driver, was negligent through the driver of the Fain vehicle, after observing Homer Demsey's dilemma, caused by the sudden stopping of the bus, in that, as it further avers, had the speed of the Fain vehicle been reduced with sufficient promptness, Demsey could have driven his jeep station wagon over in the inside lane of traffic and could have passed the bus without endangering those lawfully traveling on the street, including the plaintiff.
The case is here on the plaintiff's exceptions to the judgment sustaining the special general demurrers of both defendants and dismissing the petition.
The allegations show that, because of the proximity of Demsey's jeep to the bus when the bus was brought to a sudden stop, Demsey was unable to bring the jeep to a stop without colliding with the rear end of the bus. For the same reason it appears that it was not within the power of the Fain driver to stop before reaching the point where the bus stopped. The petition alleges that the Fain vehicle and the Demsey car were "practically alongside" each other in different lanes of traffic; that, when the bus suddenly stopped, Demsey did not have time to stop his jeep before colliding with the rear of the bus. It is not shown that the Fain Company's vehicle was driven at a slower rate of speed than the jeep, or for any other reason its driver had a better opportunity to stop before reaching a point even with the back of the bus. One cannot be charged with negligence failing to do that which was not within his power to accomplish.
One who observes another placed by emergency in a position of peril is under the duty to exercise ordinary diligence in an effort to extricate him from his dilemma, but is not required to jeopardize his own safety or that of other innocent persons in making the rescue.
In the present case the petition alleged that the Fain Company's driver saw Demsey in the dilemma, but it did not show that he could have reduced the speed of the Fain Company's vehicle with sufficient promptness to allow Demsey to enter the inside traffic lane and pass the bus and avoid colliding with it, without at the same time incurring peril to himself and motorists following him in the same lane of traffic.
The allegations of the petition, failing to show any duty on the part of the defendant Fain Company driver to slacken the speed of the company's vehicle, does not charge the defendant with actionable negligence.
2. The petition set forth facts sufficient to show a violation of a statute by the transit company's driver, though the petition neither refers to the statute or characterizes the act as unlawful. Code 68-303 (f).
That the consequence of this act of negligence "as the proximate cause of the injury sustained by the plaintiff was shown by the allegations that the bus stopped suddenly, that Demsey, the driver of the jeep, did not have time to stop the jeep without striking the rear end of the bus, and in an effort to avoid a collision with it, turned the jeep across the street, striking the automobile in which the plaintiff was riding, resulting in the alleged injuries to her, the alleged nature and extent of her injuries, and consequent expense incident to her medical treatment.
In determining whether the petition alleges a cause of action against Atlanta Transit Company, we must decide whether the thing that the driver of the bus is alleged to have done constituted negligence, and whether it can fairly be inferred from the averments that this negligence was the proximate cause of the plaintiff's injuries. In Cochran v. Kendrick, 43 Ga. App. 135 at 139 (158 S. E. 57), it is said: "When the allegations of the petition as amended are measured by the rule that a cause of action is some particular legal duty of the defendant to the plaintiff, together with some definite breach of that duty which occasions loss or damage (Ellison v. Ga. R. Co., 87 Ga. 691, 699, 13 S. E. 899), it sets out a cause of action. Therefore, we hold that the general demurrer to the petition is not meritorious."
Negligence per se in violating a public law will support a cause of action when the person injured belonged to the class intended to be protected by the statute. Platt v. Southern Photo Material Co., 4 Ga. App. 159 (60 S. E. 1068).
It is clear from the allegations of the petition that the stopping of the bus on a public street without giving the signal required by the statute was a violation of a public law and negligence per se.
That this act of negligence resulted in and was the proximate cause of the plaintiff's injuries, is made to appear by the allegations that the bus was stopped 40 feet ahead of the jeep operated by Homer Demsey; that Demsey did not have time after the bus stopped in the manner alleged to stop the jeep without colliding with the rear of the bus; that, in order to avoid this collision, he turned the jeep sharply across the street, and in doing so struck the automobile in which the plaintiff was riding, and that the plaintiff was injured in the collision.
The defendants contend that the allegation that the bus stopped suddenly was a conclusion of the pleader. We do not agree. It was an allegation of fact, and hardly could a better descriptive word characterizing a sudden stop be employed than is the word "sudden" itself. Nor was the allegation that, when the bus stopped suddenly and without warning, Demsey did not have time to bring his jeep to a stop without colliding with the rear end of the bus, a conclusion of the pleader. While the speed at which Demsey was driving the jeep was not alleged, the distance between the two vehicles was shown to have been only forty feet. The allegation that Demsey could not stop his jeep without colliding with the rear end of the bus is supported by the averment of so short a space between the vehicles. See, in this connection, Houston v. Taylor, 50 Ga. App. 811 (179 S. E. 207); Cochran v. Hendrick, 43 Ga. App. 135, 138 (158 S. E. 57). The Houston case is controlling as to the present one for the reason that the petitions in the two cases are so similar that we can see no material difference between them.
3. The plaintiff complains that the trial judge, upon sustaining the general demurrers, did not give her an opportunity to amend her petition to meet the demurrer. The record does not disclose what amendments the plaintiff proposed to make. This point is controlled by Lipscomb v. City of Cumming, 211 Ga. 55 (3)
(84 S. E. 2d 3), in which it is stated: "The record does not disclose what amendment the plaintiff proposed to make to the petition, and this court cannot determine whether the amendment, if offered, would have cured the defects in the original petition, or whether the failure to grant the request of the plaintiff's counsel was harmful error." This contention is without merit for the reasons assigned.
FELTON, C. J., concurring specially. I concur in the judgment and the rulings in divisions one and two of the opinion. I concur specially in the ruling in division three. The trial judge is not required to allow time for an amendment where he takes demurrers to a petition under advisement and renders judgment at chambers when there is no request for time in which to amend, as in this case. Ripley v. Eady, 106 Ga. 422 (32 S. E. 343), Tinsley v. Maddox, 176 Ga. 471 (168 S. E. 297), Higgins v. Otis Elevator Co., 69 Ga. App. 584 (26 S. E. 2d 380). Where a request is made for time in which to amend and no opportunity to amend is given, it is not necessary for the reviewing court to know what amendment the amending party proposed to make. In Owens v. Rutherford, 200 Ga. 143 (36 S. E. 2d 309), cited in Lipscomb v. City of Cumming, supra, there was no request to amend and a refusal by the court, and the decision takes notice of such fact. The cases cited in Thomas v. Chattanooga Ry. &c. Co., 21 Ga. App. 172 (94 S. E. 50), also in Lipscomb v. City of Cumming, supra, are all cases where specific amendments were tendered and allowance was refused and the contents of the proffered amendments were not properly brought to the reviewing court. See Wells v. Butler's Builders' Supply Co., 128 Ga. 37 (57 S. E. 55); Lytle v. DeVaughn, 81 Ga. 226 (7 S. E. 281).