Malcom v. Malcolm

• Court: Georgia Court of Appeals
• Writing for the Court: JORDAN; FELTON, C. J., and DEEN
• Citation: Malcom v. Malcolm, 144 S.E.2d 188, 112 Ga.App. 151 (Ga. App. 1965)
• Decision Date: 14 July 1965
• Docket Number: No. 1,No. 41289,41289,1
• Parties: Roy W. MALCOM v. H. A. MALCOLM

Page 188

144 S.E.2d 188

112 Ga.App. 151

Roy W. MALCOM v. H. A. MALCOLM.

No. 41289.

Court of Appeals of Georgia, Division No. 1.

July 14, 1965.

Rehearing Denied July 29, 1965.

Syllabus by the Court

The trial court erred in granting a summary judgment in favor of the plaintiff on the issue of the defendant's liability.

This was a suit to recover damages for personal injuries sustained by the plaintiff in an automobile collision which occurred in Atlanta, Ga., on May 31, 1961. The petition alleged that the plaintiff at about 5:30 p. m. on that date was operating his automobile in a line of traffic proceeding in a southerly direction on Boulevard Street, that as the traffic came to a stop, the plaintiff stopped behind the vehicle immediately in front of him, and that after he had come to a complete stop, he was struck from the rear by an automobile operated by the defendant.

The defendant was charged with the following specifications of negligence:

'(a) In failing to keep a proper lookout ahead so as to observe the plaintiff's vehicle and to avoid striking it.

'(b) In failing to keep their vehicle under control so as to be able to stop it before colliding with the plaintiff's vehicle.

'(c) In following the vehicle driven by the plaintiff more closely than was reasonable and prudent with regard to the traffic conditions then prevailing, said act constituting negligence per se, being in violation of Georgia Laws 1953, November Session, pp. 556, 585 as codified in Ga.Code Ann. Section 68-1641.

'(d) In driving their vehicle at a speed greater than was reasonable and prudent with regard to the traffic conditions and potential hazards then existing, said act constituting negligence per se, being in violation of Georgia Laws 1956 [1953], November Session, as codified in Ga.Code Ann. Section 68-1626.

'(e) In driving his vehicle in such a manner and in failing to apply his brakes so as to stop and avoid striking the automobile in which the plaintiff was stopped.'

It was alleged that the plaintiff sustained injuries to his neck, back and chest, and to certain internal organs, particularly his heart, and is now suffering from myocardial ischemia as a direct and proximate result for the rest of his life. Damages were sought in the amount of $243,514 for property damage, medical expenses, loss of earnings, and pain and suffering.

The defendant in his answer to the petition admitted the allegations of jurisdiction and of the time, date, place and direction in which the plaintiff was operating his automobile prior to the collision and denied all other allegations.

The plaintiff, on January 21, 1964, filed a motion for summary judgment as to the liability of the defendant, together with a supporting affidavit by the plaintiff and the deposition of the defendant taken on cross examination and discovery.

The plaintiff in his affidavit stated that on May 31, 1961, at approximately 5:30 p. m. he was operating his automobile in a 'northerly' (an obvious error, as it is established that both parties were proceeding in a southerly direction) direction on Boulevard in a line of traffic which was 'alternately stopping and starting,' that his automobile had moved forward with the line of traffic and as he 'brought his car to a complete stop,' he was struck in the rear by defendant's automobile; that plaintiff's stopping motion 'was not made suddenly or without warning, but by a gradual application of his brakes to bring his vehicle to a stop slowly from a speed in the neighborhood of 15 m. p. h.,' and that the rear lights on plaintiff's automobile were working properly and that he gave a signal to the rear as he brought his vehicle to a stop.

The defendant in his deposition filed by the plaintiff in support of the motion testified that on May 31, 1961, about 6 p. m. he was driving his car home from work in a southerly direction on Boulevard, that he was approaching the intersection of Boulevard and Memorial Drive at a speed of about 20 m. p. h. when he saw the plaintiff's automobile stopping suddenly ahead in a line of traffic backed up from the intersection; that he was about 25 feet behind the plaintiff at the time he observed his automobile stopping, and that he immediately slammed on his brakes which were in proper working condition, but was unable to prevent skidding into the rear of the plaintiff's automobile; that while he was looking ahead and in a position to see he did not observe the plaintiff's brake light come on and did not see the plaintiff give a hand signal; and that he was charged by the police with following too closely and a guilty plea was entered in traffic court.

The court after a hearing granted plaintiff's motion for summary judgment, determining that the defendant was liable to the plaintiff for damages suffered by the plaintiff, if any, in the collision. The case then proceeded to trial on the issue of damages, and the jury returned a verdict for the plaintiff in the amount of $40,000. The defendant filed a motion for new trial which, as amended, was denied and the exception is to that judgment and to the antecedent order of court granting the motion for summary judgment.

Powell, Goldstein, Frazer & Murphy, C. B. Rogers, John T. Marshall, John Westmoreland, Sr., B. Hugh Burgess, Atlanta, for plaintiff in error.

Peek, Carr, Whaley & Blackburn, J. Corbett Peek, Jr., Glenville Haldi, Atlanta, for defendant in error.

JORDAN, Judge.

1. 'Questions of negligence, of contributory negligence, of cause and proximate cause, and of whose negligence or of what negligence constitutes the proximate cause of an injury are, except in plain, palpable and indisputable cases, solely for the jury.' Long Const. Co. v. Ryals, 102 Ga.App. 66(1), 115 S.E.2d 726. It was not the purpose of the summary judgment law (Ga.L.1959, p. 234 et seq.; Code Ann. Ch. 110-12) to change these general rules with reference to submitting questions to the jury (Wasserman v. Southland Investment Corp., 105 Ga.App. 420, 124 S.E.2d 674), as it is permissible to grant a motion for summary judgment only where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Holland v. Sanfax Corp., 106 Ga.App. 1, 126 S.E.2d 442. In making this determination, the evidence is to be construed most favorably to the party opposing the motion, and he is to be given the benefit of all reasonable doubts and of all reasonable inferences from it. McCarty v. National Life, &c., Ins. Co., 107 Ga.App. 178, 129 S.E.2d 408.

Applying these principles to the record in this case, it is our opinion that the trial court erred in granting the plaintiff's motion for summary judgment. It cannot be said as a matter of law that the defendant was guilty of negligence in operating his automobile at a speed of 20 m. p. h. under the conditions present, or in driving at a distance of only 25 feet to the rear of the plaintiff's automobile. Neither Code Ann. § 68-1641, prohibiting one motor vehicle from following another 'more closely than in reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway,' nor Code Ann. § 68-1626, providing that 'In every event speed shall be so controlled as may be necessary to avoid colliding with any person, vehicle, or other conveyance on or entering the highway in compliance with legal requirements and the duty of all persons to use due care' defines precisely what constitutes following too closely or driving at an excessive speed. These statutes merely furnish a general rule of conduct (Teague v. Keith, 214 Ga. 853, 108 S.E.2d 489); and it is for the jury to determine in the light of all the attendant circumstances of the case, whether these statutory provisions have been violated. Flanigan v. Reville, 107 Ga.App. 382, 130 S.E.2d 258; Hargrove v. Tanner, 98 Ga.App. 16, 104 S.E.2d 665; Hay v. Carter, 94 Ga.App. 382, 94 S.E.2d 755.

Nor can it be said as a matter of law that the defendant was negligent in not keeping a proper lookout ahead, in failing to keep his vehicle under control, and in failing to apply his brakes so as to stop and avoid striking the plaintiff's automobile, as charged in the petition. The defendant testified that he was watching the road ahead and his attention was not diverted to either side of the road, that he saw the plaintiff stop his car suddenly, and that he immediately put on brakes, but could not avoid striking the plaintiff's automobile. Under this testimony, the only fact from which negligence may be inferred is that of the collision itself, and the court on motion for summary judgment must give the opposing party the benefit of all favorable inferences rather than find against him on the basis of an unfavorable inference.

As pointed out in Flanigan v. Reville, 107 Ga.App....