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ANDERSON-MCGRIFF COMPANY v. MEISEL et al.
MEISEL v. ANDERSON-MCGRIFF COMPANY et al.
33784.
33785.
Damages; from Fulton Superior Court-- Judge Moore. July 18, 1951.
FELTON, J.
The court did not err in overruling the general demurrer to the petition, or in denying the amended motion for a new trial.
Mrs. Morris Meisel sued Williams Brothers Lumber Company, A. Raymond Anderson, and Mrs. Lillian Anderson McGriff, partners doing business as Anderson-McGriff Company, Charles Heard, and K. C. Lowe for the death of her husband, allegedly due to acts of negligence on the part of defendants. The amended petition alleged substantially: that Williams Bros. Lumber Company is owner of a tractor-trailer truck which has an overall length of 30 feet; that the defendants Anderson and McGriff are owners of a truck which has an overall length of 22 feet 10 inches; that K. C. Lowe is the owner of a car-for-hire business operated in the City of Atlanta, and at all times mentioned in the petition was the owner of a 1941 Dodge automobile which was being operated by the defendant Charles Heard as a taxicab or car for hire; that Mangum Street is a paved public street in the City of Atlanta, Fulton County, which runs in a northerly and southerly direction and is 32 feet 5 1/2 inches wide; that on the west side of the street, there is a sidewalk approximately 8 feet 11 inches wide, and on the west side of said sidewalk and forming the western boundary thereof, is a building occupied by Puritan Mills; that approximately 550 feet north of where Hunter Street intersects with Mangum Street, another public street of the City of Atlanta known as Block Place intersects Mangum Street at right angles on the eastern side thereof but does not cross such street; that Block Place is approximately twenty-four feet wide; that located in the side of the Puritan Mills building which abuts the western boundary of the sidewalk described above, is an opening used as a loading dock; that said opening is 6 feet 9 1/2 inches wide, and its southern edge is almost exactly opposite the southern curb line of Block Place; that approximately 125 feet north of Hunter Street, a railroad sidetrack crosses Mangum Street; that from the railroad sidetrack intersection on Mangum Street and down in a northerly direction to a point approximately 200 feet beyond the north side of Block Place, or a total distance of about 625 feet to the intersection of Rhodes Street, the said Mangum Street makes a steep descent, and such steep descent over said approximately 625 feet has an average grade of about 6 percent; that on the morning of August 2, 1948, at approximately 10:30 o'clock, the plaintiff's husband, Morris Meisel, had started to cross Mangum Street in an easterly direction at a place just south of said loading dock of the Puritan Mills building and opposite the sidewalk on the southern side of Block Place; that at the time and place the truck of the defendants Anderson and McGriff had been backed up to the loading dock by their agent, with the rear end of the truck immediately adjacent to the loading dock and with the front end jutting out into the street, so that the truck faced Block Place and stood at right angles to the Puritan Mills building; that the truck had been so parked since 8:45 o'clock that morning; that, due to the length of the Anderson-McGriff truck, it entirely obstructed the sidewalk abutting the Puritan Mills building described above and extended out into Mangum Street approximately 14 feet, and thus obstructed almost the entire western half of Mangum
Street, which is the southbound lane; that at the time and place there were automobiles parked on the eastern side of Mangum Street parallel to the curb, and said cars were parked up to the intersection of Mangum Street with Block Place, which is about directly opposite the point where the Anderson-McGriff truck was parked, leaving an opening or slot just big enough for one line of traffic to get through on Mangum Street between the parked car next to Block Place and the Anderson-McGriff truck extending out into the street; that the resulting opening or slot on Mangum Street for traffic was less than 12 feet in width; that at the time and place the truck of Williams Bros. Lumber Company was being driven in a southerly directly on Mangum Street approaching the intersection of Block Place; that at the same time and place the automobile owned by the defendant K. C. Lowe was being driven by the defendant Charles Heard in a northerly direction on Mangum Street toward Block Place; that, as this said automobile crossed over the said railroad track and started down the hill or step descent on Mangum Street, it was traveling at approximately 20 miles per hour; that, as the plaintiff's husband proceeded eastward on Mangum Street alongside of the truck of Anderson-McGriff Company, and as he reached a point near the side of the right front fender of said truck, the tractor-trailer truck of Williams Bros. Lumber Company swerved left, started around the front end of the parked Anderson-McGriff truck on the wrong side of the road, and proceeded into the said opening or slot in said street.; that the tractor-trailer truck of Williams Bros. Lumber Company is approximately 32 feet long and 8 feet in width, and, as said truck drove into the opening or slot, it filled and occupied such opening or slot-so as to prevent and block any other truck or automobile from passing or driving through said opening or slot at the same time that the tractor-trailer truck was passing through the opening or slot; that the tractor-trailer truck drove into said opening suddenly, without warning, without stopping and without slowing down, and completely blocked the street as aforesaid, as the automobile driven by the defendant Heard had reached a point only a short distance from the opening; that before driving into the opening, the driver of the Williams Bros. Lumber Company tractor-trailer truck carelessly and negligently failed to determine whether any vehicle was approaching on the correct or right-hand lane of Mangum Street in such proximity to said opening, at that time, so as to make it dangerous for the tractor-trailer truck to enter into and pass through said opening; that as the truck of Williams Bros. Lumber Company proceeded through the opening and passed in front of the Anderson-McGriff Company truck, it was traveling at a speed of approximately 15 miles per hour; that as the Williams Bros. Lumber Company truck proceeded on through the opening, the automobile being driven by the defendant Heard, while traveling at a speed of approximately 20 miles per hour, suddenly and without warning swerved to its left and onto the wrong or left lane of Mangum Street, and ran head-on into the plaintiff's husband, hurling and pinning him against the side of the right front fender of the Anderson-McGriff truck, crushing his right thigh and causing severe lacerations about the right leg and knee and numerous lacerations and bruises on other parts of his body, which injuries finally resulted in his death; that, at the moment when the automobile being driven by the defendant Heard jammed the plaintiff's husband against the Anderson-McGriff truck, the tractor-trailer truck of Williams Bros. Lumber Company was still on the wrong side of the road on Mangum Street and the rear end thereof was about fourteen feet from, and south of, the Anderson-McGriff truck, at which point the tractor-trailer truck had come to a dead stop; that at said time and place the plaintiff's husband was walking with due care and caution in an unmarked crosswalk easterly across Mangum Street at its intersection with Block Place, and had not passed beyond the right front fender of the Anderson-McGriff truck, and that he was not given any opportunity whatsoever to avoid being struck and injured as aforesaid; that the truck of the defendants Anderson and McGriff had been placed at the loading dock, and the truck of the defendant Williams Bros. Lumber Company and the automobile of the defendant Lowe were being driven by servants of the respective defendants in the scope of their employments; that the following are valid and subsisting ordinances of the City of Atlanta: "88-501. Pedestrians' right of way.--(a) The driver of any vehicle shall yield the right of way to a pedestrian crossing the roadway within any marked
62 ANDERSON-MCGRIFF CO. v. MEISEL. [55 Ga.
crosswalk, or within any unmarked crosswalk at the end of a block, except at intersections where the movement of traffic is being regulated by a police officer or traffic control signals, or at any point where a pedestrian tunnel or overhead crossing has been provided. 88-702. Reckless driving.--Any person who drives any vehicle upon a highway carelessly and heedlessly, in disregard of the rights or safety of others, or without due caution and circumspection, and at such speed or in such manner as to endanger or to be likely to endanger any person or property, shall be guilty of reckless driving. (April 5, 1933) 88-703. Restrictions as to speed.--Any person driving a vehicle or street car shall drive the same at a careful and prudent speed not greater than is reasonable and proper, having due regard for the traffic, surface and width of the street and any other condition then existing, and no person shall drive any vehicle at such speed as to endanger the life, limb or property of any person. However, in no case shall the speed of a vehicle exceed 25 miles per hour. 88-807. Angle parking forbidden.--It shall be unlawful for any person to park upon a street any vehicle in any manner other than parallel to the curb along said street, that is to say, so that the inside wheels of said vehicle shall be at a distance not greater than six inches from such curb; and parking known as angle parking is declared unlawful: Provided, however, that cars may lawfully be parked at an angle at such places as may be provided by property owners adjacent to the street where the indentations provided by such property owners extend a sufficient distance from the original curb line to allow the vehicles parked at an angle in such places to project into such street beyond such curb line a distance no greater than the width of such vehicles, the amount of space occupied in such street thereby being no greater than in cases of parallel parking as above defined at such place. (February 19, 1941) 88-907. Miscellaneous operating regulations.-- . . . (d) Brakes.--All motor vehicles shall be equipped with two sets of adequate brakes kept in good repair at all times, except that motorcycles shall be required to have only one set of brakes in good repair"; that Mangum Street is located in a highly congested industrial section of Atlanta and is heavily traveled by automobiles and trucks in both directions, both day and night, particularly from 8 o'clock a.m. until 5 o'clock p.m., and that during the daytime automobiles are almost constantly parked along the curb on the eastern side of Mangum Street at and near the intersection of Block Place, and that on the western side of the said street trucks are constantly being loaded and unloaded that the incline of Mangum Street at said place is steep, and automobiles and trucks are frequently driven down said hill or incline in a northerly direction at high rates of speed; that these facts are well known to the defendants, their agents and servants, or in the exercise of ordinary care should have been known to them; that the automobile of the defendant Lowe was not equipped with two sets of good and adequate brakes; that the defendants Anderson and McGriff did not cause a flagman to be placed in Mangum Street to warn cars approaching from one direction of the approach of cars or trucks from the opposite direction, although they knew or in the exercise of ordinary care should have known that the parking of the truck in the manner described obstructed traffic and obscured the vision of drivers approaching each other on said street at said point, and thus created a serious traffic hazard and a dangerous situation; that the driver of the tractor-trailer either saw or in the exercise of ordinary care should have seen the automobile being driven by the defendant Heard approaching from the south as he attempted to pass around the parked truck of Anderson-McGriff by entering into the opening, and the driver either saw or could have seen the plaintiff's husband standing at the right fender of the parked truck in said crosswalk and should have anticipated the danger of entering the opening, and should have anticipated that, by failing to stop or by failing to back out of the opening, a collision by the automobile with either the tractor-trailer truck or the parked truck would likely result and some injury be caused to persons or property including the plaintiff's husband; that the person in charge of the Anderson-McGriff truck could and should have anticipated that, by parking the truck in the manner described and in almost completely blocking the western half of the street, injuries or damage to persons and property would likely result from automobiles or trucks traveling in opposite directions; that the negligence of the defendants was the direct and proximate cause of the injuries and subsequent
death of the plaintiff's husband; that the defendant Williams Bros. Lumber Company, acting by and through its servant, was guilty of the negligence which, jointly and concurrently with the negligence of the other defendants, contributed to and caused the death of the plaintiff's husband, in that the driver of the tractor-trailer truck: did not ascertain whether traffic was coming down the east side of Mangum Street and the proximity of such traffic before crossing over to his left side of the road and in attempting to drive around the parked truck; did not blow his horn or give warning that he was going to pass through said opening; failed to signal when approaching a point where the view ahead was not clear, in violation of 68-303 (j), Code of Georgia, which constituted negligence per se; failed to reduce his speed while approaching the intersection of Block Place and Mangum Street, in violation of 68-303 (i), Code of Georgia; failed to have the truck under immediate control in violation of 68-304, Code of Georgia; drove the truck carelessly and heedlessly in disregard of the rights and safety of others, in violation of 88-501 of the Atlanta City Code; failed to stop upon discovering the approach of the automobile being driven by the defendant Heard; failed to back the truck out of said opening upon discovering the approach of the automobile, when he knew or should have known that the driver thereof was traveling at such a speed that he could not stop without striking one or the other of the two trucks obstructing the street; failed to turn to the right in violation of 68-305 of the Atlanta City Code; that the defendants Anderson and McGriff were guilty of negligence by and through their servant, which negligence, jointly and concurrently with the negligence of the other defendants, contributed to and caused the injuries to the plaintiff's husband, in that the driver of the truck: backed the truck to the dock so as to block the street as aforesaid; parked the truck so as to obstruct the view of persons approaching the point along Mangum Street from the north towards the south; parked the truck so that the opening left in the street was not sufficient for vehicles to pass each other while traveling in opposite directions; failed to place a flagman at the parked truck as aforesaid; failed to park the truck with its right side as near the right side of the street as practicable, in violation of 68-303 (a), Code of Georgia; failed to park the truck on Mangum Street parallel to the curb, in violation of 88-807, Atlanta City Code; placed the truck on Mangum Street opposite the intersecting street of Block Place, when he knew or should have known that pedestrians crossed Mangum Street at such point, and that pedestrians might be injured due to the traffic hazard set out above; that the defendant Charles Heard was guilty of negligence which, jointly and concurrently with the negligence of the other defendants, contributed to and caused the death of the plaintiff's husband, in that he: was driving at an excessive rate of speed, taking into consideration grade and traffic conditions then existing; was driving carelessly and heedlessly in disregard of the rights and safety of others and without due caution and circumspection, and at such a speed and in such a manner as to endanger others, in violation of 88-702, Atlanta City Code; was driving at a speed greater than reasonable and proper, having due regard for traffic, surface and width of the street, in violation of 88-703, Atlanta City Code; was driving at a greater speed than was reasonable and safe, having due regard for the width, grade, character, traffic, and common use of said street, in violation of 68-301, Code of Georgia; drove the vehicle on the left, or his wrong side of the street and struck the plaintiff's husband while so proceeding; failed to turn to the right of the center of the street as he approached the vehicle coming from the opposite direction, in violation of 68-303 (c), Code of Georgia; failed to use his brakes or otherwise slow down before striking the plaintiff's husband; failed to reduce his speed when approaching the intersection of Mangum Street and Block Place and while descending the said hill, in violation of 68-303 (i), Code of Georgia; failed to sound his horn or other signaling device, when his view was not clear and when approaching another vehicle, in violation of 68-303 (j) and 68-306, Code of Georgia; failed to have the automobile under immediate control in violation of 68-304, Code of Georgia; drove when the automobile failed to have good and adequate brakes, in violation of 68-302, Code of Georgia, and of 88-907 (d), Atlanta City Code; that the defendant K. C. Lowe was guilty of negligence which, jointly and concurrently with the negligence of the other defendants contributed to and proximately caused the death
of the plaintiff's husband, in that he permitted his servant to operate the automobile belonging to him without good and adequate brakes, in violation of 88-907, Atlanta City Code and of 68-302, Code of Georgia, which constituted negligence per se; and he was negligent through his agent and servant in all the particulars set out in reference to such servant.
The defendants, except Heard and Lowe who defended jointly, filed their separate answers and demurrers. The court overruled certain of the demurrers, and the defendants concerned excepted pendente lite. The jury found for the plaintiff against all the defendants, and their amended motions for a new trial were overruled. They assign error on their exceptions pendente lite and on the overruling of their amended motions for a new trial.
1. Ground 10 of the amended motion for a new trial complains that the trial judge erred, when charging on 88-808 of the Atlanta City Code, which reads in part: "In places where, and at such hours as, stopping for the loading or unloading of merchandise or materials is permitted, vehicles used for the transportation of merchandise or materials may be backed into the curb to take on or discharge loads", in that he charged that the permission mentioned in such ordinance meant the official permission of the City of Atlanta. The charge was not error. Section 88-807 of the Atlanta City Code forbids any parking other than parallel parking except where indentations as described therein are provided. This ordinance is the general ordinance on parking within the City of Atlanta. Section 88-808 is an exception to 88-807, and provides that, in cases where it is permitted, one may park other than in the manner prescribed in 88-807. Under 88-808 stopping a vehicle for loading or unloading purposes is a parking of the vehicle. The permission contemplated by 88-808 is the permission of the City Council of Atlanta, which promulgated 88-807 and is the only one that can permit an exception to such section, or can delegate to proper persons the authority to grant such permission. Nothing is shown to indicate that the city council properly delegated the power to grant the permission contained in 88-808 to someone other than the council; therefore, it must be assumed that such authority remained with the City Council of Atlanta. The contention that the permission contemplated by 88-808 meant the permission of the individual police officer on the beat, either by his express permission or by his "implied permission" by failure to apprehend offenders parking other than parallel, is without merit. Because this charge was a correct one, special grounds 11 and 12, alleging error in certain other charges are without merit. While the evidence failed to show that the city council had permitted the type of parking described in 88-808 at the loading dock of the Puritan Mills (and the burden of proving such permission was on the defendants Anderson and McGriff, it being a matter of defense), the charges complained of would have authorized the jury to find that such permission had been granted, and were therefore beneficial rather than harmful to the defendants Anderson and McGriff. The remaining special grounds Of the amended motion for a new trial and the special demurrers were not argued or expressly insisted upon, and will be treated as abandoned.
2. It was not error to overrule the general demurrer.
(a) Under the allegations of the petition, this court cannot say as a matter of law that the plaintiff's husband was guilty of such negligence in the first instance as would bar her recovery, or that the husband could have avoided the consequences of the defendant's negligence after it was discovered or should have been discovered by the exercise of ordinary care.
(b) The plaintiffs in error here contend that the general demurrer should have been sustained because, subsequently to their original act of alleged negligence in illegally parking their truck, new and independent causes intervened sufficient in themselves to stand as the cause of the misfortune, and that their alleged negligence was too remote. Under the facts alleged, we do not concur in this view. While the contention of the plaintiffs in error corresponds with the general rule, yet "if the character of the intervening act claimed to break the connection between the original wrongful act and the subsequent injury was such that its probable or natural consequences could reasonably have been anticipated, apprehended, or foreseen by the original wrong-doer, the causal connection is not broken, and the original wrong-doer is responsible for all of the consequences resulting from the intervening act." Southern Rg. Co. v. Webb, 116 Ga. 152 (42 S. E. 395, 59 L. R. A. 109); Williams v. Grier, 196 Ga. 327 (2a) (26 S. E. 2d, 695); Gillespie v. Andrews, 27 Ga. App. 509 (108 S. E. 906); Kleinberg v: Lyons, 39 Ga. App. 774 (5) (148 S. E. 535); Sprayberry v. Snow, 190 Ga. 723 (10 S. E. 2d, 179); Bozeman v. Blue's Truck Line, 62 Ga. App. 7 (7 S. E. 2d, 412); 2 Restatement, Torts, 1184, 439; 17 A. L. R. (2d) 582. This rule is especially applicable where, as here, the law or ordinance was enacted for the very purpose of preventing consequences similar to those involved in this case. See Bozeman v. Blue's Truck Line, supra. The defendants were not required to foresee the precise manner in which the collision might occur.
3. The general grounds of the amended motion for a new trial of the plaintiffs in error are without merit. There was evidence to support the findings of the jury, that the truck of the plaintiffs in error was illegally parked and that they were guilty of negligence per se, and that Williams Bros. Lumber Company was negligent in passing the truck of the plaintiffs in error on the wrong side of the street without first ascertaining that the way was clear enough for it to go around the parked truck and get back on its side of the street before encountering oncoming traffic, and that the other defendants were negligent in failing to apply the taxicab's hand brakes, in driving too rapidly under the facts, and in not avoiding hitting and injuring the plaintiff's husband, and that these acts of negligence combined and proximately caused the death of the plaintiff's husband.
4. The court did not err in charging the law on comparative negligence in relation to Anderson-McGriff Company.
This case is a companion case to Williams Bros. Lumber Co. v. Meisel and Lowe v. Meisel post, to which reference is made.
The court did not err in overruling the general demurrer of Anderson-McGriff Company to the petition, or in denying the amended motion for a new trial.
Israel Katz, W. Neal Baird, Neely, Marshall & Greene, Howard, Tiller & Howard, Andrews, Nall & Sterne, contra.
Fraser & Shelfer, George A. Haas, Haas & Hurt, for plaintiff in error.
DECIDED DECEMBER 4, 1951.
Saturday May 23 05:12 EDT


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