Buckhead Glass Co. v. Taylor

• Decision Date: 09 April 1970
• Docket Number: No. 25644,25644
• Citation: 226 Ga. 247,174 S.E.2d 568
• Parties: BUCKHEAD GLASS COMPANY v. Mary TAYLOR.
• Court: Georgia Supreme Court

Page 568

174 S.E.2d 568

226 Ga. 247

BUCKHEAD GLASS COMPANY v. Mary TAYLOR.

No. 25644.

Supreme Court of Georgia.

April 9, 1970.

Syllabus by the Court

1. Even where the plaintiff relies for recovery on grounds of negligence per se, it is ordinarily a jury question as to whether or not such negligence was the proximate cause of the injury.

2. The refusal of the court to direct a verdict for the plaintiff, as to liability, even if error was harmless. The jury would have been authorized to find that the evidence was insufficient to show that plaintiff received any injuries from the collision.

Jones, Bird & Howell, Peyton S. Hawes, Jr., Atlanta, for appellant.

B. Hugh Ansley, Atlanta, for appellee.

ALMAND, Chief Justice.

Mary Taylor, in her complaint filed in January, 1967, sought to recover damages for alleged personal injuries arising out of a collision between a bus of the defendant Atlanta Transit Company in which she was a passenger, and a truck of the Buckhead Glass Company, also a defendant. She subsequently dismissed the Atlanta Transit Company as a party defendant.

Among the allegations of negligence as to the remaining defendant was that in operating its pick-up truck 'the same not being equipped with brakes adequate to control the movement of and to stop and hold such vehicle in violation of Georgia Code Section 68-1715(a), (Ga.L.1953, Nov.Sess., p. 556) same constituted negligence per se.' This allegation was denied by the Glass Company in its answer. By amendment to its answer it was alleged: 'By way of further answer, this defendant shows that immediately prior to the collision in question, its employee applied the brakes to the 1961 pickup truck being driven by him. That the brake pedal of the aforesaid vehicle went entirely to the floor of the vehicle and the brakes failed to either stop or slow the vehicle in any way, causing it to collide with the bus which had stopped in the lane of traffic directly in front of the truck being operated by the defendant's employee. That the defendant's employee had driven the aforesaid truck approximately 2 miles on the morning in question and had applied the brakes on a number of occasions and on each occasion prior to the collision found the brakes to be in good and adequate working condition. That this defendant's employee could have avoided the collision had not the brakes on the pick-up truck suddenly and without warning failed to hold. That the collision which is the subject matter of this action was not caused by any negligence of this defendant's employee but rather was an unavoidable accident as defined by the laws of the State of Georgia.'

On the trial of the case at the close of the evidence the plaintiff moved for a directed verdict in her favor as to liability. The motion was overruled. The jury rendered a verdict in favor of the defendant. The plaintiff's motion for a new trial and in the alternative a judgment in her favor notwithstanding the verdict was overruled. On the appeal to the Court of Appeals the order of the trial judge in refusing to direct a verdict in favor of the plaintiff as to liability was reversed. (120 Ga.App. 663, 171 S.E.2d 779). It was there ruled: 'Since the defendant failed to prove that it was free from negligence in maintaining admittedly defective brakes which caused the collision, the trial judge erred in failing to direct a verdict for the plaintiff as to negligence.'

The Buckhead Glass Company assigning error or this ruling filed its application for the writ of certiorari which we granted.

For the reasons given below we reverse.

1. Questions of diligence and what negligence constituted the proximate cause of the injury complained of in this case, were questions peculiarly for the jury. , McCurry v. Moffett, 80 Ga.App. 761, 57 S.E.2d 451. Even where the...