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Lawskills.com Georgia Caselaw
BRYANT v. PITTMAN et al.
38211.
Action for damages. Early Superior Court. Before Judge Geer. December 19, 1959.
FELTON, Chief Judge.
Under the allegations of the petition which showed that both the plaintiff and the defendants were guilty of negligence per se, the questions of which party was guilty of the greater negligence and whether the plaintiff was barred by his own negligence are jury questions. The court erred in sustaining the defendants' general demurrers.
John R. Bryant sued Josh Pittman, designated defendant, and Dennis C. Davis, designated co-defendant, for damages for personal injuries and damage to property alleging in part: "Plaintiff was driving his 1956 Chevrolet station wagon and was proceeding at a speed of approximately 20 miles per hour and exercising ordinary care and diligence. Defendant is the owner of an Early County school bus which on the above said date was being driven by co-defendant, as defendant's agent acting within the scope of his authority as agent of the defendant. The co-defendant was driving south on U.S. 27. Co-defendant was driving on the east (his left) side of the road, as if he intended to turn left off the highway, or move onto the east shoulder and stop. The plaintiff was driving on the west (his right) side of the road and the entire west lane of the road was open and clear in front of the plaintiff. The co-defendant gave no signal indicating any intention to make a right turn. As the plaintiff's vehicle came alongside the bus driven by co-defendant, the co-defendant suddenly and without any warning proceeded to turn to the right. When the bus driven by co-defendant crossed the center line of U.S. 27 the right front of said bus collided with the left side of plaintiff's vehicle." The negligence alleged against the defendants was: "The negligence of the co-defendant acting within the scope of his authority as agent for defendant was the sole proximate cause of plaintiff's damages. The co-defendant was negligent in the following particulars: (a) In operating his vehicle on the left side of the highway in violation of Georgia Code Section 68-1633, as negligence per se. (b) In turning his vehicle from a direct course at a time when such movement could not be made with reasonable safety in violation of Georgia Code Section 68-1647, as negligence per se. (c) In turning his vehicle without giving a signal of intention to do so in violation of Georgia Code Section 68-1647(b), as negligence per se. (d) In failing to keep a look-out for approaching traffic. (e) In failing to yield right of way to plaintiff's vehicle which had preempted the west lane of the highway at the point of impact." The court sustained defendants' general demurrers to the petition and the plaintiff excepts.
The petition shows that the defendants were guilty of negligence per se in violating Code (Ann.) 68-1633 (Ga. L. 1953, Nov.-Dec. Sess., pp. 556, 581), by driving in the left lane of the highway; that they violated Code (Ann.) 68-1647 (same act, p. 587) in turning their vehicle from a direct course and moving to the right before the movement could be made with reasonable safety; that they violated the part of the act next above referred to in not giving a signal. The petition shows also that the plaintiff was guilty of negligence per se in violating Code (Ann.) 68-1635 (Ga. L. 1953, Nov.-Dec. Sess., pp. 556, 582), in attempting to pass the school bus on the right, since the passing alleged does not fall within the exceptions in the act, Code (Ann.) 68-1636. The general rule is that where one voluntarily and knowingly takes a risk involving imminent danger he is precluded from recovery by reason of another's negligence. However, under the allegations of the petition in this case, and despite the fact that both the plaintiff and tlie defendants were guilty of negligence per se and were charged with knowledge that the other might otherwise be guilty of negligence per se, justice requires the submission of the case to a jury for the determination of which party was the more negligent, if one was more negligent than the other, and whether the plaintiff is barred by his own negligence in taking the risk he took in this case. In this case the driving of the school bus in the left-hand lane under the circumstances related in the petition might reasonably become an important factor in the jury's determination of the measure of the plaintiff's negligence. The mere fact that a plaintiff is guilty of a failure to exercise ordinary care does not necessarily bar his recovery. Willis v. James, 89 Ga. App. 824 (81 S. E. 2d 517). The question of proximate cause is not an issue since the negligence of both parties combined as contributing proximate causes to produce the collision.
The court erred in sustaining the defendant's general demurrers.
Judgment reversed. Nichols and Bell, JJ., concur.
Phillip Sheffield, Farkas, Landau & Davis, Edmund Landau, Jr., contra.
Colquitt H. Odom, Ray Y. Cross, for plaintiff in error.
DECIDED JUNE 14, 1960.
Friday May 22 23:58 EDT


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