Atlanta Gas Light Co v. Mills

• Decision Date: 11 February 1949
• Docket Number: No. 32270.,32270.
• Citation: 51 S.E.2d. 705
• Parties: ATLANTA GAS LIGHT CO. v. MILLS et al.
• Court: Georgia Court of Appeals

51 S.E.2d. 705

ATLANTA GAS LIGHT CO.

v.MILLS et al.

No. 32270.

Court of Appeals of Georgia, Division No. 1.

Feb. 11, 1949.

Rehearing Denied Feb. 26, 1949.

Syllabus by the Court.

1. The court did not err in overruling the general demurrer of the defendant gas company to the petition of the plaintiff.

2. The court erred in overruling the special demurrers referred to in divisions 2 and 3 of the opinion.

3. The court did not err in overruling the special demurrers referred to in divisions 4 and 5 of the opinion.

Error from Superior Court, Bibb County; A. M. Anderson, Judge.

Action by Harry Mills against the Atlantic Gas Light Company doing business as Macon Natural Gas, a corporation, and others for injuries received in an automobile collision. Judgment overruling demurrers to the petition and the named defendant brings error.

Affirmed in part and reversed in part.

Harry W. Mills sued Atlanta Gas Light Company, doing business as Macon Natural Gas, a corporation,. W. W. Walke, War Emergency Co-operative Association, a corporation, American Mutual Liability Insurance Company of Boston, Massachusetts, and A. M. Couey, for damages for injuries received in a collision between an automobile in which the plaintiff was riding and a gasoline transport motor truck owned by Walke, while it was being operated jointly by him and War Emergency Co-operative Association, and being driven by A. M. Couey as their employee and their duly authorized agent acting within the scope of his employment.

It was alleged that the plaintiff was a policeman in the City of Macon and was on patrol duty with a fellow officer named Pritchett on September 3, 1947 when a call came from police headquarters directing them to report to the scene of an accident. They were riding in a Plymouth car owned by the City of Macon to which they had been assigned. In responding to the call Officer Pritchett was driving the car and had the siren turned on and the automatic blinker working. When they reached a point on North Avenue at which it was about 30 feet in width, approximately in front of Bowen's Fruit Stand, they met the truck owned and operated by the defendants going in the opposite direction at a rapid rate of speed. Motor vehicles were parked on North Avenue on both the east and west side of the street reducing the driving space at that point so that it was not safe for two motor vehicles to attempt to pass each other. Prior to this date the defendant gas company had cut sections through the concrete pavement on North Avenue at different points, including a place near Bowen's Fruit Stand, by making holes in the pavement a foot or more in width and several feet in length to enable the company to repair or replace its mains. The gas company had obtained permission from the City of Macon to cut into the pavement with an express understanding that the places dug out would be kept in a proper state of repair and in a safe condition until the pavement was replaced. It was alleged that the holes in the pavement were not properly filled with dirt or some other suitable substance, and as a result there were sudden drop-offs into these holes of from two to six inches, making the highway dangerous for heavy vehicular traffic which passed over it at all hours of the day and night; and that the gas company did not have any red lights, warning signs or barricades to. notify the public that said holes were unsafe to travel over. As the officers were preparing to go between the parked vehicles in front of Bowen's Fruit Stand, all of a sudden and without any warning the truck owned and operated by the defendants suddenly loomed up in front of them in the middle of the street where it was attempting to pass the parked motor vehicles and was traveling at a speed of approximately 40 miles per hour. Officer Pritchett put on his brakes and tried to pull the patrol car to the right of the road, but the truck, without reducing its speed, struck the car on its left side about the door and pushed it back more than 20 feet. As Officer Pritchett was in the act of putting on the brakes the police car was approaching a cut in the pavement in front of Bowen's Fruit Stand, and dirt, rock and pebbles had been scuffed out of this hole by automotive traffic so that in places it was lower than the pavement and in other places higher than the pavement, and when they hit this hole or cut place the uneven surface caused the car to skid sideways with its rear and across the center line, and this, together with the dirt, sand, pebbles and rock on the paved surface which had come out of the cut place caused the brakes on the car not to hold, thereby rendering it impossible for Officer Pritchett to control the movement of said automobile. It was alleged also that "Petitioner had no previous knowledge of the existence of said hole in the pavement in front of Bowen's Fruit Stand, and due to it being located on a curve, said defective condition was not visible to petitioner until the police car was only a few feet from it and at that time the gasoline truck was rapidly approaching from the opposite direction. Petitioner shows that the negligent maintenance of said cut in the pavement prevented Officer Pritchett from bringing the police car to a complete stop before the collision and caused the car to be hit on its left side instead of the front, and the force of the impact was greater because both vehicles were in motion at the time of impact." The injuries received by the plaintiff, and the damages sustained by him, were set out in the petition.

The negligence charged against the gas company was (a) in making the excavation in front of Bowen's Fruit Stand without filling it with some substance that would make it smooth and even with the pavement; (b) in failing to keep said excavation in a proper state of repair until the pavement was replaced; (c) in permittingholes from one to four inches in depth to dig out in said excavation in front of Bowen's Fruit Stand, and in permitting dirt and rock that had been placed in said excavation to protrude from one to three inches above the pavement in other places, creating a rough and dangerous condition; (d) in failing to keep said excavation smooth with the pavement so that it would be safe for travel by thousands of trucks and vehicles over said excavation, said traffic conditions being well known to the defendant gas company, and (e) in failing to put up barricades, flares or warning signs to protect the public from the holes it had dug in the pavement.

The gas company filed a general demurrer to the petition on the ground that it set out no cause of action against it for the following reasons:

(a) The damages sought in the petition are related too remotely to any tortious act charged against this defendant to be the basis of a recovery; (b) it appears from the petition that the proximate cause of the incident resulting in the alleged damages to the plaintiff was the negligent conduct of the operator of the gasoline truck which collided with the automobile in which the plaintiff was riding; that the efficient, active cause of the collision between the car and the truck was the negligence of the operator of the truck in driving to...