Johnson v. McAfee, 57970

• Decision Date: 15 October 1979
• Docket Number: No. 57970,57970
• Parties: JOHNSON v. McAFEE et al.
• Court: Georgia Court of Appeals

Page 708

261 S.E.2d 708

151 Ga.App. 774

JOHNSON v. McAFEE et al.

No. 57970.

Court of Appeals of Georgia.

Submitted June 13, 1979.

Decided Sept. 4, 1979.

Rehearing Denied Oct. 15, 1979.

Joe Salem, Atlanta, for appellant.

J. Robert Persons, Atlanta, for appellees.

UNDERWOOD, Judge.

Plaintiff, injured when his automobile was struck by an excursion bus owned by the corporate defendant and being operated by its employee McAfee, brought this appeal after a verdict for defendants, his primary contention being that the court erroneously denied his motion for directed verdict as to liability. We find this complaint to be meritorious, and consequently we reverse.

1. We do not find sufficient support in the record for defendants' claim that the motion for directed verdict had been waived or rendered moot, or that plaintiff had acquiesced in or induced any error of the court. Consequently we proceed to a determination of the issue presented.

2. The evidence reveals that the bus, which was a 1950 diesel model equipped with airbrakes, was exiting I-20 on a downhill ramp when the driver, in attempting to brake in anticipation of entering the intersecting street, "didn't get the full result" from the brakes and as a result crashed into plaintiff who was proceeding lawfully on the intersecting street. While defendants contend that the motion for directed verdict was properly denied because a jury question was presented as to whether an emergency in the form of a sudden, unexpected brake failure excused their failure to yield the right-of-way to plaintiff, we entertain a different view.

The evidence demands the finding that the plaintiff was proceeding properly in the exercise of his right-of-way when he was "blindsided" by the bus thus obviating any possible question as to his comparative negligence, avoidance of the consequences of defendants' negligence, etc.; that the insufficient performance of the brakes and resulting failure to yield the right-of-way to plaintiff was the sole proximate cause of the collision; and that plaintiff was cut and otherwise physically injured as a result. Accordingly the operation of the bus in this manner constitutes a violation of Code Ann. §§ 68-1715 (requirements as to brakes) and 68A-403(a) (failure to yield at yield sign) and prima facie establishes negligence per se in the absence of a valid defense. "It then devolves upon the defendant to produce evidence in his own behalf to satisfy the jury that the operation of the automobile was not a violation of a statute or ordinance because unintentional and not the result of any failure to exercise ordinary care on his part." Cruse v. Taylor, 89 Ga.App. 611(1b), 80 S.E.2d 704 (1954). Accord, Griner v. Tuten, 114 Ga.App. 484, 151 S.E.2d 835 (1966).

It was admitted by defendant bus driver that the malfunction of the brakes caused the collision, and defendants "thus assumed the burden of proving that it (through its employee) was free from negligence in maintaining them. In discussing former Code § 68-302 relating to the duty of maintaining efficient and serviceable brakes, this court in Cruse v. Taylor, 89 Ga.App. 611, 616, 80 S.E.2d 704, cited with approval the following language contained in Purser v. Thompson, 31 Tenn.App. 619, 219 S.W.2d 211: 'We think when it appeared...