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Lawskills.com Georgia Caselaw
PARKER v. BRYAN.
35801.
Action for damages. Before Judge Davis. Walker Superior Court. May 23, 1955.
FELTON, C.
The petition, which alleged that the defendant was operating his automobile at a speed of approximately 70 miles per hour in close proximity to a preceding car and that when the driver of the preceding car suddenly slowed down to avoid striking some dogs which suddenly appeared in the road in front of his automobile, the defendant, in avoiding a rear-end collision with the preceding car, cut to his left and because of his speed, lost control of his car which eventually upset at a distance of some 240 feet down the highway, alleged a cause of action for gross negligence in an action by the widow of the defendant's guest who was killed when the defendant's automobile upset; therefore, the court did not err in overruling the general demurrer to the petition.
Mrs. Annice R. Bryan, the widow of Thomas W. Bryan, sued Joel C. Parker for damages for the death of her husband. The petition alleged in substance: that on May 4, 1954, the plaintiff's husband was a guest in an automobile being driven by the defendant along Georgia Highway No. 18 in Wilkinson County, Georgia; that immediately preceding the defendant's automobile was an automobile being operated by Troy Upshaw; that. as the two automobiles were being driven along, Upshaw, the driver of the front car, observed some dogs which had jumped out in the road in front of his automobile and, in order to avoid striking the dogs, he suddenly slowed down his vehicle; that at this time the defendant was driving at a speed of approximately 70 miles per hour in close proximity to the preceding car being driven by Upshaw; that when Upshaw's car suddenly slowed down, the defendant, because of his excessive speed and close proximity to the car in front, was unable to slow down and undertook to "cut" his automobile to his left-hand side of the highway in order to avoid colliding with the Upshaw car; that because of his excessive speed, the defendant lost control of his automobile, which turned sidewise and skidded to the left-hand shoulder of the road; that after skidding past the front automobile, the defendant's car ran off the pavement on the left-hand side, turned toward the righthand side of the road, completely reversed itself and went off a six-foot fill on the right-hand side of the road, throwing both the defendant and the plaintiff's husband out of the automobile; that the automobile then turned over on the decedent, killing him; that the automobile turned over on the decedent at a point approximately 240 feet from the point where the defendant lost control of his automobile in the attempt to go around the Upshaw car; that at such point on the highway where the aforesaid events took place, the black-topped highway had a width of 21 feet with shoulders on each side of a width of about six feet; that the defendant immediately before and at the time he undertook to pass the Upshaw car was driving at a dangerous and excessive rate of speed of approximately 70 miles per hour, was traveling in too close proximity to the automobile in front of him, the exact distance separating said automobiles being unknown to the plaintiff, and was failing to keep a lookout ahead so as to be able to bring his automobile to a stop in the event of the sudden slowing down or stopping of the automobile in front of him; that the defendant was guilty of the following acts of gross negligence, which were the sole and proximate cause of the decedent's death: in following the automobile then and there traveling immediately ahead of him more closely than was reasonable and prudent, having due regard for the speed of the vehicles and the traffic upon and the condition of the highway, in violation of the law (Code, Ann., 1954 Supp. 68-1641 (a)); in driving said automobile at the time aforementioned at a speed greater than was reasonable and prudent under the conditions then existing and without regard to the actual and potential hazards then existing and without controlling the speed of his automobile so as to avoid colliding with any other vehicle on the highway, in violation of the law (Code, Ann., 1954 Supp. 68-1626 (a)); in then and there operating his automobile at a reckless and dangerous rate of
speed of approximately 70 miles per hour in violation of the law (Code, Ann., 1954 Supp. 65-1626 (b)).
The defendant's general demurrer to the petition was overruled and he excepts.
J. "A motorist has right to follow another motorist at reasonable and safe distance. However, he must govern his speed or keep back a reasonably safe distance so as to provide for the contingency of a car in front suddenly stopping, maintaining a proper lookout for the car immediately preceding him, and so that he can stop without a collision, or can turn out sufficiently to pass the vehicle in front without going across the street in the way of traffic approaching from the opposite direction, as that will naturally result in collision with such traffic." Jackson v. Camp & Brown Produce Co., 92 Ga. App. 359, 363 (88 S. E. 2d 540). This principle applies in the instant case where, because of his speed and his proximity to the preceding car, the defendant lost control of his car in an attempt to avoid a rear-end collision with the preceding car. Also see Ga. L. 1953, Nov.-Dec. Sess., pp. 556, 585 (Code, Ann. Supp., 68-1641 (a)).
In the case of Fletcher v. Abbott, 92 Ga. App. 364 (88 S. E. 2d 445), the plaintiff alleged that the defendant was following a pick-up truck at a distance of 55 feet and at a speed of 50 miles per hour and had been doing so for a distance of three miles; that the pick-up truck suddenly and without warning stopped, and the defendant, in order to avoid colliding with the rear of the truck, drove to his left and across the center line of the highway coming to a stop with the front of his ear about three feet over the center line; that a car approaching from the opposite direction at a speed of not less than 80 miles per hour collided with the defendant's car, the collision causing the damage sued for. The court held that the petition setting out such facts alleged a cause of action against the defendant for gross negligence.
It is contended that since the petition alleges that the exact distance between the defendant's car and the car he was following was unknown, the petition fails to allege that the defendant was following in too close proximity to the preceding car. While the exact distance is not alleged, it was alleged that the Upshaw car was "immediately preceding" the defendant's car, and we think the allegation that when the preceding car suddenly slowed down, the defendant, because of his speed, in order to avoid striking the preceding vehicle, attempted to go around such vehicle and in such attempt lost control of the car, warrants the statement that the defendant was traveling in too close proximity to the preceding car for the speed he was traveling. Actually, the farther you place the defendant's car in the rear of the preceding car the more it militates against him because the farther back he was the more negligent he was in not stopping or avoiding losing control of his car.
It is true that the mere violation of a speed law or excessive speed in and of itself does not amount to gross negligence, but such violation or excessive speed coupled with other circumstances may amount to gross negligence. Some such instances are excessive speed and following too closely behind a preceding vehicle, excessive speed without keeping a proper lookout, excessive speed under existing conditions of the road, traffic, weather, etc.
Under the allegations of the petition in this case, the question of whether the defendant was guilty of gross negligence is one for a jury's determination.
The court did not err in overruling the general demurrer to the petition.
Judgment affirmed. Quillian and Nichols, JJ., concur.
G. W. Langford, Shaw & Shaw, Painter & Cain, contra.
Frank M. Gleason, for plaintiff in error.
DECIDED NOVEMBER 23, 1955 -- REHEARING DENIED DECEMBER 13, 1955.
Saturday May 23 03:08 EDT


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