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Tort; homicide in truck wreck. Before Judge Manning. Cobb Superior Court. April 6, 1956.
Where, properly construed most strongly against the pleaders, the petitions affirmatively show that by the exercise of ordinary care their deceased son could have avoided the consequences of the alleged negligence of the defendant after it became apparent to him, or in the exercise of ordinary care should have become apparent to him, the petitions fail to state causes of action and on general demurrer should be dismissed.
Mr. W. C. Brown and Mrs. Lena W. Brown, husband and wife, each brought a separate action against Atlanta Gas Light Company for damages growing out of the death of their minor son, Bobby Joe Brown. In his action, Mr. Brown seeks to recover his son's funeral expenses and the reasonable value of his son's services between the date of his death and the date of his majority. In her action, Mrs. Brown seeks to recover the full value of her son's life. Except with respect to the allegations as to the damages sought, the material allegations of the two petitions as finally amended are identical and substantially as follows: (2) At approximately 8 a.m. on or about January 25, 1955, the plaintiff's minor son was driving a G.M.C. dump-truck at approximately 25 miles per hour, approaching the location of an excavation made by the defendant, from the north, driving in a southerly direction on the west side of the street, and he died of crushing and suffocation when the dump-truck he was driving struck a pile of dirt on Kennesaw Avenue and turned over into the excavation, partially pinning his body underneath the steel body of the truck on account of the negligence of the defendant, as will be more particularly set forth hereinafter. (3) The defendant was laying a gas line on Kennesaw Avenue about three-fourths of a mile north of the City of Marietta, Georgia, and had opened the street on the west side for the purpose of installing or repairing its gas line. (4) Kennesaw Avenue is a public street of the City of Marietta, and is 23 feet wide and paved with concrete at this point. (5) The plaintiff's son was unfamiliar with the location of the dirt pile and excavation as he traveled in that direction. Approximately 400 feet north of the excavation and dirt pile, there is a curve in the street, and it is impossible for a person approaching the excavation and dirt pile from the north to see them. (6) There was nothing in the street as the plaintiff's son approached the dirt pile from the north, traveling in a southerly direction, to warn him that such conditions existed in the street. (7) In addition to piling the dirt into the street, the defendant had accumulated loose dirt on the concrete street for a distance of approximately 100 feet from the point of impact back northerly. (8) The deposit of loose dirt on the pavement was thicker on the right-hand side of the road where the right-hand wheels of the plaintiff's son's vehicle were traveling than on the left-hand side of the right half of the road where the left wheels of the vehicle were traveling. (9) The loose dirt on the pavement, which was between the tires of the vehicle and the concrete pavement, caused the vehicle to skid toward the dirt pile and the accumulated loose dirt threw the vehicle into the dirt pile and then into the ditch excavated by the defendant. (10) The plaintiff's son was thrown from the truck at the point and time of the impact and under the truck as it turned over and caused his death. (11) The ditch into which the truck in which the plaintiff's son was driving was located on the west side of Kennesaw Avenue between the sidewalk and curb line, and the defendant had excavated dirt from the area, commonly referred to as a grass plot, to make the ditch in which to lay its gas pipe or to make repairs to its existing line; and, in making the excavation, the defendant negligently and carelessly piled dirt almost over the entire street and in such a manner as to cause the truck driven by the plaintiff's son to be wrecked and pin him beneath it, leaving him partially buried under dirt and gravel with his face downward in the dirt. (12) The defendant was laying the gas line in the prosecution of its normal business and its agents were done by agents, servants, and employees whose names are unknown to the plaintiff but are well known to the defendant, and these agents, servants and employees were acting within the scope of their authority. (13) The plaintiff's son did not know of the hazard and danger caused by piling the dirt into the street, and had no warning that it would cause his truck to be wrecked in the manner described. (14) The plaintiff's son was unmarried and did not leave a wife or children surviving him. (15) The defendant was negligent in the circumstances resulting from
its piling dirt in the street and in causing the death of the plaintiff's son, and the defendant failed to use ordinary care and diligence for the safety of the persons using the street while the gas line was being installed as the street was open to the public on that date. (16) The defendant was negligent in the following particulars: (a) In piling the dirt in the street in the path of that portion of the street--the right-hand side of the west side thereof--which was being traveled by the plaintiff's son. (b) In throwing the dirt over almost the entire surface of the street instead of concentrating it in one pile. (c) In failing to place any barriers, barricades, torches, or red flags, or other warning devices of any kind around the dirt and ditch, or the approaches thereto, to warn the plaintiff's son and other persons using the street that such hazard was present. (d) In failing to warn the plaintiff's son of the danger of the dirt and ditch in the street. (e) In violating Chapter 25, 14, of the Marietta City Code, which provides as follows: "No person shall in any way remove, dig into or tear up any portion of any paved street or sidewalk of the city for any purpose other than for laying drains or sewers under the supervision and control of the board of lights and waterworks without first obtaining a permit from the city engineer," which constitutes negligence per se. (f) In violating chapter 25, 19 of the Marietta City Code which provides as follows: "No person shall be allowed or permitted to obstruct any sidewalk or street in the city by putting any box, table, steps, merchandise or any other thing thereon, or to use the streets and sidewalks for the display of goods, wares or merchandise of any kind, nor shall the streets for sidewalks be obstructed in any other manner whatsoever," which constitutes negligence per se. (17) The pile of dirt and ditch were left unprotected without contractual authority and contrary to contractual obligations. The defendant had authority to refill the ditch and remove the dirt and had a duty to do so to protect the general public and the plaintiff's son; and the defendant had the control of the opening and closing of the ditch and had a general duty to the public and a contractual duty to place lights, flags and other signs or barriers on the street, as the defendant had entered into a contract with the City of Marietta, which, under its franchise, relieved the city of such warning. The defendant was using the street on the date in question under a quoted ordinance and franchise. (18) The defendant had a duty to the general public, including the plaintiffs' son, to place lights, barricades, barriers and other signs on the street to warn them of the obstruction which the defendant failed to do. (21) The direct cause of the death of the plaintiffs' minor son was the negligence of the defendant. (22) The plaintiffs' son was exercising that degree of care and caution in keeping with his age.
The defendant's renewed and additional general and special demurrers to the petitions and to the petitions as finally amended were overruled, and it has brought the present writs of error here to have those judgments reviewed.
1. While we are fully aware of the beneficent and salutary rule, to which this court scrupulously adheres in proper cases, that ordinarily questions of diligence and negligence, including proximate cause, are for the jury, we also recognize it to be the duty of the court to determine those questions in clear, palpable, and indisputable eases. Evans v. Georgia Northern R. Co., 78 Ga. App. 709, 712 (52 S. E. 2d 28), and cit.; and this latter rule is frequently enforced as a result of the necessary application of the proper rules of construction to pleadings. "It is an elementary rule of construction, as applied to a pleading, that it is to be construed most strongly against the pleader; and that if an inference unfavorable to the right of a party claiming a right under such a pleading may be fairly drawn from the facts stated therein, such inference will prevail in determining the rights of the parties." Krueger v. MacDougald, 148 Ga. 429 (1) (96 S. E. 867); Slade v. Barber, 200 Ga. 405, 412 (37 S. E. 2d 143); McEntire v. Pangle, 197 Ga. 414 (29 S. E. 2d 503).
"If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover." Code 105-603.
From the petition, and under an application of the foregoing rules of law, it is apparent that admitting the truth of all the allegations of negligence attributed to the defendant, the plaintiff's son could have avoided the occurrence which resulted in his death by the exercise of ordinary care for his own safety after he had, or in the exercise of ordinary care, should have, discovered the defendant's alleged negligence.
The plaintiffs' son is alleged to have been 20 years of age at the time of his death, and in the absence of an allegation to the contrary he will be presumed to have been mentally responsible, and to be as responsible as an adult is for his own safety (Youngblood v. Henry C. Beck Co., 93 Ga. App. 451, 454, 91 S. E. 2d 796, and cit.; Moore v. Seaboard Air Line R. Co., 30 Ga. App. 466, 118 S. E. 471; Thomas v. Georgia Granite Co., 140 Ga. 459 (1), 79 S. E. 130) and an ordinarily prudent person in the possession of all of his faculties is certainly expected, in driving an automobile upon the highways and streets of today, to use his sense of sight, if not of hearing, to determine whether there is present any of those dangers upon the streets and highways which a person of ordinary intelligence would reasonably apprehend. See in this connection Western & A. R. Co. v. Ferguson, 113 Ga. 708, 713 (39 S. E. 306, 54 L. R. A. 802). The continual, if not continuous, necessity for making excavations in and along the streets and highways of today, and the concomitant strowing and piling of earth in and along the streets and highways for the purpose of laying and repairing water, gas, electrical, and sewerage mains, and the repair of the streets and highways themselves, is so common an occurrence as to be reasonably anticipated by us all, especially those of us who drive or ride in motor vehicles. Moreover, common prudence requires that the drivers of motor vehicles be constantly vigilant in their lookout ahead for any and all objects and obstructions which may impede their progress along the streets and highways. The street upon which the plaintiffs' son met his death is alleged to have been a paved one in the City of Marietta 23 feet wide. Such a street is obviously wide enough for the passage of two lanes of traffic in the absence of any allegation to the contrary. The plaintiffs' son is alleged to have been traveling at a speed of 25 miles per hour southward upon this street at 8 a.m. on the morning of January 25, 1955, and as the sun rose, on that date at 6:59 a.m., in the absence of allegations to the contrary, we will presume that the day was lighted and clear and that there was ordinary visibility along the street at the time of the occurrence which resulted in the death of the plaintiffs' son. It is alleged that the defendant had piled dirt almost over the entire street in such a manner as to cause the truck which the plaintiffs' son was driving to be wrecked and pin him beneath it. It is alleged that in addition to piling dirt in the street, the defendant had, for a distance of 100 feet north of the point of impact accumulated loose dirt on the street which caused the right wheels of the truck to ride higher than the left wheels as the plaintiffs' son continued in his right-hand lane of the street, and that this loose dirt caused the truck to skid into "the dirt pile" and to turn over into the excavation alongside the street on his right-hand side. It is further alleged that there was nothing in the street to warn the plaintiffs' son of these conditions and that 400 feet north of the excavation and dirt pile there was a curve which obscured his view of the dirt piled in the street and the excavation. Construing these allegations together and against the pleaders, the curve was 400 feet north of the conditions existing in the street and for a distance of 400 feet the conditions in the street were necessarily within his view, as it is nowhere alleged that he could not see for a distance of 400 feet ahead of him or that the conditions in the street were obscured by optical illusion or otherwise. It is not alleged that the plaintiffs' son at any point before the truck skidded and struck the dirt pile reduced his speed of 25 miles per hour and we will presume in the absence of such an allegation that he continued at that speed unabated. As it is alleged that he traveled the last 100 feet of the 400 feet from the curve over the loose dirt on the pavement we must assume, since his right wheels were riding higher than his left wheels in the right lane, that he was absolutely aware of the presence of the accumulated dirt for that distance and since the right wheels were riding higher than the left ones that there was less dirt to the left of his path of travel. No reason is given why he was unable to turn aside into the left lane of the street to avoid the pile of dirt which he struck. No reason is assigned why he was unable to stop the truck after he necessarily saw the obstructions in the street.
From all this the only reasonable conclusion to which we can come is that the plaintiffs' son was the author of his own misfortune in ploughing headlong at an unabated speed into a clearly visible obstruction in the street, when in the exercise of ordinary prudence he could have avoided the obstruction by stopping his vehicle or by turning aside to avoid striking it. Since under the rules of law stated above, the plaintiffs' son, were he alive, could not recover, his parents, the plaintiffs, may not. Youngblood v. Henry C. Beck Co., 93 Ga. App. 451, 454. Accordingly, the trial court erred in overruling the defendant's general demurrers to the petitions.
Judgments reversed. Gardner, P. J., and Townsend, J., concur.
Claude M. Hicks, J. Douglas Henderson, contra.
Reed & Ingram, for plaintiff in error.
Saturday May 23 02:14 EDT

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