Cravey v. J. S. Gainer Pulpwood Co., Inc., 47857

• Decision Date: 12 March 1973
• Docket Number: No. 47857,No. 3,47857,3
• Citation: 128 Ga.App. 465,197 S.E.2d 171
• Parties: Flora Mae CRAVEY v. J. S. GAINER PULPWOOD COMPANY, INC
• Court: Georgia Court of Appeals

Page 171

197 S.E.2d 171

128 Ga.App. 465

Flora Mae CRAVEY v. J. S. GAINER PULPWOOD COMPANY, INC.

No. 47857.

Court of Appeals of Georgia, Division No. 3.

March 12, 1973.

Fred A. Gilbert, Atlanta, for appellant.

Jerry O. Capes, P. Russell Tarver, Covington, George N. Skene, Macon, for appellee.

Syllabus Opinion by the Court

STOLZ, Judge.

Mrs. Cravey sued the defendant company for damages for personal injuries alleged to have been caused by the negligence of the defendant's employee in driving a loaded pulpwood truck into the rear of the plaintiff's husband's automobile, in which the plaintiff was a passenger. There was evidence that the plaintiff and her husband had stopped their automobile for a minute or a minute and a half behind a house trailer, which was waiting for oncoming traffic to clear in order to cross over a one-lane bridge. The defendant's loaded pulpwood truck approached the waiting vehicles from the rear, traversed the downhill, two-lane, public highway in fair weather and daylight with the stopped vehicles in plain view for 300 to 350 feet, and struck the right rear of the automobile, causing damage thereto in the amount of approximately $185. The plaintiff's husband had tried to avoid the collision by moving his vehicle forward for about 20 feet prior to the collision. The truck driver applied his air brakes, which the plaintiff's husband heard, but he was unable to stop the truck in time, and told the plaintiff's husband that 'he was sorry and had done everything he could to stop it, but he said he'd been wondering about the brakes, the brakes weren't sufficient to hold him.' The defendant's driver was not called as a witness. After the collision, the plaintiff complained immediately that her neck, and later her back, hurt; she was treated by several doctors for neck and back pains; and had been unable to continue to work regularly at her employment, as she had been able to do previously, although she was still undergoing chiropractic treatment for a back injury sustained some 10-15 years previously.

The plaintiff appeals from the grant of the defendant's motion for a directed verdict. Held:

1. The facts, that the defendant owned the truck involved in the collision, that the employee was driving the truck loaded with pulpwood at the time, and that this was the employee's regularly assigned duty, were sufficient to raise a rebuttable presumption that the employee was operating the defendant's truck within the scope of his employment. Ayers v Barney A. Smith Motors, 112 Ga.App. 581, 145 S.E.2d 753. This presumption is further supported by the fact, as shown by the evidence, that the defendant acknowledged liability for the collision by indemnifying the plaintiff's husband for the damage to his automobile. The defendant did not, as a matter of law, overcome the presumption, raised by circumstantial evidence, by introducing 'clear, positive, and uncontradicted evidence' to the contrary. Ayers, supra, p. 582, 145 S.E.2d 753 and cit.

The defendant had a duty to exercise ordinary care in the maintenance of its truck in a safe condition and in driving it upon the public roads. The defendant's employee/truck driver made a statement to the plaintiff's husband, which is not controverted, which indicates that he had had notice that the brakes on the truck were not operating properly, ¹ which notice is imputable to his employer, the defendant. The evidence having shown that the plaintiff was completely free of negligence, either direct or imputable, and the defendant's evidence having revealed no legal reason or excuse for its failure to fulfil its duty to exercise ordinary care to avoid the collision (whether by maintaining the brakes in a safe condition, or by its driver's regulating his speed, turning...