Cunningham v. National Service Industries, Inc., 69923

• Decision Date: 01 May 1985
• Docket Number: No. 69923,69923
• Parties: CUNNINGHAM v. NATIONAL SERVICE INDUSTRIES, INC.
• Court: Georgia Court of Appeals

Page 899

331 S.E.2d 899

174 Ga.App. 832

CUNNINGHAM v. NATIONAL SERVICE INDUSTRIES, INC.

No. 69923.

Court of Appeals of Georgia.

May 1, 1985.

Rehearing Denied May 23, 1985.

Certiorari Denied June 19, 1985.

Thomas W. Tobin, Atlanta, Valer V. Tobin, Decatur, for appellant.

Warner R. Wilson, Jr., Therese S. Barnes, Atlanta, for appellee.

BIRDSONG, Presiding Judge.

Plaintiff/appellant Leona R. Cunningham, a nurse employed at the Ridgeview Institute on South Cobb Drive in Smyrna, Georgia, was attempting to exit from the driveway of Ridgeview and turn left across the two northbound lanes. South Cobb Drive is a four-lane road with a center turning lane. Plaintiff indicated a left turn with her turn indicator while waiting in the driveway for traffic to clear. Defendant's linen truck was proceeding north on South Cobb Drive and signaled with his turn indicator for a right turn into Ridgeview's driveway. Defendant's truck could not enter because of plaintiff's vehicle, and plaintiff's view of oncoming traffic from the left was blocked by defendant's truck. Plaintiff stated: "So we waited for awhile and nothing. You know, there was no way. He waved me on to come on. I didn't see anything. I hadn't seen anything but his truck. I went very slowly to go and that's all I can remember." She was struck by another northbound car in the inside northbound lane. Cunningham described the defendant driver's hand signal as: "He just moved it from right to left...." Plaintiff's car was struck by the northbound vehicle at the door by the driver.

A witness to the incident was in the center turning lane attempting to enter the Ridgeview driveway. She saw the vehicle approaching her which struck the plaintiff. Her affidavit states: "Just as plaintiff's vehicle pulled out, past the large red truck, the white car struck the driver's side of plaintiff's vehicle. Based upon my view of this event and the resulting collision, it is my testimony that the plaintiff had no time to react or respond to the white car which hit plaintiff. In fact, it is my opinion that plaintiff, in all probability, may not have even seen the vehicle which struck her."

Defendant filed a motion for summary judgment. Plaintiff contended she relied upon the defendant's driver's signal which obstructed her view of northbound traffic on South Cobb Drive. Defendant argued that plaintiff could not, as a matter of law, rely on the defendant's driver's actions. In its order, the trial court held that while there is a genuine issue of fact as to whether the plaintiff relied on defendant's driver's "waving" the plaintiff to move out of the driveway, there is no genuine issue as to any material fact and, as a matter of law, plaintiff could not rely upon the hand signal of the defendant's truck driver and gave judgment for defendant. Plaintiff brings this appeal. Held:

Counsel for defendant states that this is a case of first impression. There are two similar cases in which a plaintiff relied upon the signal of another and was involved in an automobile accident as a result. In Louisville & Nashville R. Co. v. Ellis, 54 Ga.App. 783, 189 S.E. 559, plaintiff's auto approached defendant's railroad crossing and her view of traffic on the other side was blocked by the train. A trainman signaled her to proceed and "[r]elying on the signal," she crossed and was struck by a truck. We found that "all persons are presumed by the law to anticipate or foresee the reasonable and natural consequences of their conduct" (p. 785, 189 S.E. 559) and "where a railroad has created a dangerous situation at a street and railroad crossing, and the jury could reasonably find that the same was the proximate cause or one of the proximate causes [cit.] of the plaintiff's injury, there would be a case of liability alleged against such railroad." Id., p. 786, 189 S.E. 559.

We held that although the act of the trainman in "beckoning and signaling to plaintiff to proceed can be said to have been without the expressed or implied assent of the railroads, and they had limited his duties to attending to the train, and at crossings his duty did not extend beyond seeing that his train [did] not injure any one at the crossing, the railroad companies would be responsible for the wrongful act of the trainman, if committed in the prosecution of his business with the railroads, and if as a result thereof the plaintiff was injured." Id. We reasoned that "[w]ithout the act of the trainman in beckoning to the plaintiff to proceed across the intersection, after she had come to a stop on seeing the train at the crossing, the collision between plaintiff's car and the truck of the Atlantic Ice and Coal Company would not have occurred.... While a trainman is not a traffic officer, and ordinarily the extent of his duty does not include the regulation of traffic ... still, where his train blocks the vision of a motorist or other traveler approaching a crossing ... and beckons her to proceed forward, a jury might easily find that such trainman did see, or could have and ought to have seen, a truck approaching on the blind side of the crossing to the traveler to whom he was motioning to proceed forward, which blind condition was caused by his train obstructing the vision of such person at the crossing. In these circumstances the petition makes a case for submission to a jury.... A jury could find that this plaintiff exercised due care for her own safety when she brought her automobile to a stop on observing the train at the crossing, and that she would not have proceeded forward at the time except for the ... beckonings by the trainman to come forward, which she naturally supposed meant that the way was clear both of the train and of any danger on the other side thereof where her vision was obstructed by such train." Id., pp. 786-787, 189 S.E. 559.

In the instant case the record does not reveal any evidence which refutes plaintiff's testimony that defendant's driver gave her a hand signal. In her response to defendant's interrogatories, plaintiff contended that defendant's truck blocked her view of the northbound lanes of South Cobb Drive and because "the linen truck driver had blocked the plaintiff's view of the oncoming traffic, the driver of the truck gave plaintiff a hand motion to proceed out onto South Cobb Drive...." They contend defendant was negligent in blocking plaintiff's view and "by waving plaintiff into the intersection without being certain that no oncoming traffic was approaching."

In a similar case, Hollingsworth v. Harris, 112 Ga.App. 290, 145 S.E.2d 52, the defendant had parked a truck on the right hand side of a street, apparently not in violation of any ordinance, and a police officer saw a speeding car approach from the opposite direction, made a U-turn to chase the speeding vehicle and was struck by another vehicle hidden from his view by the parked truck which was racing with the first speeding vehicle. We found that "it cannot be said as a matter of law that stopping a motor vehicle on a street in such manner as to block the vision of others having a right to its use is non-negligent as a matter of law." Id., p. 292, 145 S.E.2d 52. However, in the instant case defendant's truck was not parked and the person whose vision was being blocked was attempting to enter the same street.

One other Georgia case has similar features. The cases of Shirley Cloak etc. Co. v. Arnold, 92 Ga.App. 885, 90 S.E.2d 622 and Arnold v. Chupp, 93 Ga.App. 583, 92 S.E.2d 239, arose out of the same incident. Plaintiff Arnold was following defendant Shirley's truck on U.S. 41 north of Milner, Georgia, for about 20 minutes. He was unable to pass the truck, but the driver of the truck began flashing his left-hand turn blinker, which was a customary signal given by drivers of trucks when it was safe to pass. As Arnold started around the truck, the driver gave him a hand signal, which was customary for drivers to give when the way ahead was clear. Arnold started around the truck and saw a second truck in front of Shirley's truck and then headlights of an oncoming car came into view; Arnold could not get between the two trucks because of a lack of space and he collided with the other vehicle head-on. Plaintiff Chupp was a passenger in the other vehicle and brought the subsequent suit which is reported in 93 Ga.App. 583, 92 S.E.2d 239. Defendant Shirley contended, as did defendant National Service in the instant case, that the proximate cause of the accident was plaintiff's own negligence in failing to exercise ordinary care for his safety as required by statute. We held that "[w]hile the defendant's driver was under no obligation to give the plaintiff any signal at all, when he undertook to do so a duty devolved upon him to exercise ordinary care to see that the way was clear ahead for the plaintiff's car to pass safely, and whether he did so under the circumstances is a question [of fact] for the jury's determination." Shirley, supra, p. 892, 90 S.E.2d 622. At this point, we should note that this action was between the person who gave the signal and the person who acted upon the signal.

In Arnold v. Chupp, supra, the suit was by a plaintiff who was injured as a result of the actions of the defendant driver of the passing vehicle who had acted on the signal of the truck driver. Hence, as between the driver of the vehicle who gave the signal and the driver who acted on the signal, we found that the driver who gave the signal was under a duty to exercise ordinary care. As between the injured party in the vehicle that was struck by the concurrent actions of the other two vehicles, we held that the driver of the passing vehicle had no right to rely upon the signal of the leading vehicle because one cannot delegate a statutory duty requiring care to escape his negligence and the consequence of his delegation. Arnold, supra, p. 587, 92 S.E.2d 239. However, we specifically noted there that "[w]hat is here said relates to...