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HANCHEY v. HART et al.
GARNER v. HART et al.
Action for damages. Decatur Superior Court. Before Judge Culpepper.
HALL, Judge.
Issues of negligence, including the related issues of assumption of risk, lack of ordinary care for one's own safety and comparative negligence, are ordinarily not susceptible of summary adjudication whether for or against the plaintiff, but should be resolved by a trial in the ordinary manner.
This is an action for personal injuries suffered by plaintiffs in a five-car collision. Plaintiffs appeal from summary judgments in favor of defendants Hart and Whitehead. Both defendants filed third-party complaints naming as defendants other parties involved in the collision. The trial court did not rule on the motions for summary judgments filed by the third-party defendants.
The following evidence was presented on defendants' motions for summary judgments: On January 23, 1967, plaintiff Hanchey, a Seaboard Coastline Railroad employee, was driving a company car which had been assigned to plaintiff Garner, a roadmaster for Seaboard and both men were on their way to Ozark, Alabama, on a work assignment for the company at the time of the accident. Garner was in charge of the ear and though he was a passenger at the time the collision occurred, he at all times had the authority to take ever the driving or to direct Hanchey to stop or to take a particular route.
Shortly before 8 a.m., plaintiffs drove into an area of dense fog mixed with smoke on Highway 84 just east of Donalsonville, Georgia. They had been traveling through intermittent patches of fog earlier that morning but, by plaintiff Garner's testimony, it had not obstructed their visibility enough to require them to reduce their normal speed. Garner testified, however, that when they got in to this patch of fog on Highway 84 they found it was mixed with smoke from defendant Whitehead's sawmill nearby. The fog and smoke seemed to get heavier and heavier and their vision was almost completely obscured. Suddenly they saw what looked like a flashlight with a weak battery and, realizing that it was probably an accident on the road, they immediately stopped, not hitting the truck ahead of them, which belonged to third-party defendant Cannington. Almost instantly upon stopping, they were hit from the rear by a car driven by defendant Hart and their car was then knocked into the Cannington truck.
The two cars involved in the accident on the road ahead of plaintiffs were driven by third-party defendants Cox and Cannington. Cox, whose car was first in the five-car collision, testified that she could see the fog and smoke from the top of the hill leading down to Highway 84 but she did not realize from there that it was thick. "When you first entered it it didn't seem like it was going to be as thick. I mean, you know, you could make it all right. . . I got in it when I noticed it, I mean, it seemed like it just got heavier. As I was going on through it it just got heavy." She testified that once into the densest area of the fog she couldn't see at all and was then struck from the rear by Cannington's pick-up truck.
Defendant Hart's testimony substantiated that of the others as to the density of the fog and the fact that it was mixed with smoke blowing across the highway from the Whitehead Lumber Company sawdust pits. He described it as being darker than the darkest night and testified that he could not see over his hood. He applied his brakes when he came to the "wall of fog" and still had them on when he hit the car in front of him.
Defendant Smith testified that when she saw the fog and smoke from the top of the hill she turned on her lights, applied her brakes and the next thing she knew she hit the Hart car.
Cannington and Cox thought there were some smoke warning signs up in the area of the lumber company at the time of the accident.
The trial court's order granting summary judgments for defendants Hart and Whitehead was based on the following conclusions from the evidence:
That by driving into the fog and smoke-enshrouded area, Hanchey, as well as all the other operators of the vehicles involved in this multiple collision assumed the risk of any and all dangers that might await them therein; that since the car Hanchey was driving was actually assigned to Garner, and Hanchey was subject to Garner's control and direction, Garner did not have the status of guest passenger or the insulation that would accompany that status; that Garner did not exercise ordinary or even slight care for his own safety; and that in no event could defendant Whitehead be held liable to any of the parties, because of the doctrines of assumption of risk and failure to exercise ordinary care and diligence for their own safety.
In our opinion the trial judge was in error in refusing to allow a trial on the issue of whether the actions of the plaintiffs, based upon the totality of the circumstances including conflicting testimony as to the density of the fog, were those of reasonable men. As Chief Justice Doe, one of our nation's greatest judges, said almost a century ago, things will "come to a strange pass" if a man or woman needs a course of legal study before he dares to act in a reasonable and necessary manner. Aldrich v. Wright, 53 N. H. 398 (16 AR 339).
"Here we start with the general proposition that issues of negligence, including such related issues as wanton or contributory negligence, are ordinarily not susceptible of summary adjudication either for or against the claimant, but should be resolved by trial in the ordinary manner." 6 Moore's Federal Practice (2d Ed.) 2583, 56.17 (42). "Summary judgment will not usually be as feasible in negligence cases, where the standard of the reasonable man must be applied to conflicting testimony, as in other kinds of litigation. . . Even where there is no dispute as to the facts, it is, however, usually for the jury to say whether the conduct in question met the standard of the reasonable man." 3 Barron & Holtzoff, Federal Practice and Procedure, 106, 109, 1232.1. This principle has historical background in Georgia as to the directing of a verdict in a negligence case: "The question of fault or negligence is a question for the jury . . . ; what constitutes it is made up of facts and circumstances which are to be weighed and considered by them. . . For a judge [or this court] to usurp their authority and decide for them would be an encroachment upon their duties . . . courts are not to presume juries will not find correctly." Central R. v. Freeman, 66 Ga. 170, 173. As this court stated recently, "Questions necessitating a decision as to whether a given state of facts shows that lack of ordinary care for one's own safety which will bar recovery (within which category are placed those situations amounting to the assumption of the risk involved) or only that comparative negligence which will reduce it are generally for the jury." Stukes v. Trowell, 119 Ga. App. 651 (168 SE2d 616). See also McCurry v. Bailey, 224 Ga. 318 (162 SE2d 9).
The case of Reid v. Southern R. Co., 52 Ga. App. 508 (183 SE 849), upon which the trial court based its ruling, is inapposite for the reason that its premise relies upon the old discarded pleading principle that the petition should be construed most strongly against the pleader. The present rule of construction on both a motion to dismiss and a motion for summary judgment has been repeated by this court so consistently that it needs no citation: The movant has the burden and the opposing party is given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the petition and evidence; the movant has this burden even as to issues upon which the opposing party would have the trial burden.
In our opinion the controlling authority on this question is Kreiss v. Allatoona Landing, Inc., 108 Ga. App. 427, 432 (133 SE2d 602), wherein it was held: "This court cannot accept the premise that every person injured while walking in darkness regardless of the attendant circumstances has failed to exercise care for his own safety and thus is precluded by law from recovering for his injuries." Insofar as to any earlier cases to the contrary, the court overruled the same. P. 435. This being the law as to a plaintiff walking in darkness, it of necessity follows that it is the law as to a plaintiff driving an automobile who approaches a strip of fog and smoke of unknown length about which witnesses are in dispute as to its density. "Not what actually happened, but what the reasonably prudent person would then have foreseen as likely to happen, is the key to the question of reasonableness." Shockley v. Zayre of Atlanta, Inc., 118 Ga. App. 672, 675 (165 SE2d 179).
If a jury were to find the risk foreseeable, the question would then become: was it unreasonable; was the risk of such magnitude as to outweigh the utility of the defendant's conduct (continuous burning of sawdust during a fog)? American Law Institute, Restatement, Torts (1934 Ed.) p. 785 et seq., 291-293. The magnitude of the risk involves the social value of the interest imperiled (safety of motorists), the probability of harm, and the likely extent of harm. Id. p. 791, 293. Factors relating to the utility of particular conduct are the social usefulness of the enterprise (here, a sawmill), the value of the particular way of conducting the enterprise (continuous burning of sawdust), and the extent to which defendant's interest can he advanced by another and less dangerous course of conduct (such as discontinuing the burning during a fog or providing chimneys which rise above the usual fog level). Id. p. 788, 292. We believe reasonable men could disagree whether, if the risk to the plaintiffs was foreseeable, it was unreasonable, considering the magnitude of the risk and the utility of defendant's conduct. Johnson v. Thompson, 111 Ga. App. 654, 657 (143 SE2d 51).
The trial court erred in granting the defendants' motions for summary judgment.
Judgment reversed. Jordan, P. J., and Whitman, J., concur.
Perry, Walters, Langstaff & Lippitt & Campbell, Robert B. Langstaff, Miller & Kirbo, Bruce W. Kirbo, Julian Webb, Twitty & Twitty, Frank S. Twitty, Harold Lambert, for appellees.
Conger & Conger, J. Willis Conger, Alexander, Vann & Lilly, Roy M. Lilly, for appellants.
Friday May 22 17:38 EDT

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