Mathis v. Nelson
| Decision Date | 13 July 1949 |
| Docket Number | 32568. |
| Citation | 54 S.E.2d 710,79 Ga.App. 639 |
| Parties | MATHIS v. NELSON. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. (a) A statement in a petition that a tractor with road drag engaged in the maintenance of county roads, is working such roads while in the left hand traffic lane is not by itself enough to allege a violation of Code§ 68-303 and to constitute negligence per se, since this code section applies primarily to vehicles engaged in transportation, and it is not shown that the act of working a road with such tractor while on the left hand side constituted a lack of due care, or that it would have been possible to perform the same activities while on the right hand side of the road.
(b) A statement in a petition that a tractor with road drag engaged in the maintenance of county roads, is working such roads and is in one traffic lane of such roads, at 5:30 a. m on a dark morning, with no lights, is sufficient to allege a violation of Code, § 68-302, requiring that every motor vehicle and tractor shall be equipped with proper lights.
2. (a) A warden of a prison camp having supervision of the maintenance of county roads is not, in the absence of wilfulness, fraud, malice or corruption, liable for acts performed colore officii, which acts are discretionary in character. Price v. Owens, 67 Ga.App. 58, 19 S.E.2d 529.
(b) A warden of a prison camp having supervision of the maintenance of county roads is liable for negligence in the performance of ministerial acts when such negligence is the proximate cause of injury to third persons.
(c) The actual work of running a tractor with road drag for the purpose of maintaining county roads is such a ministerial function as would subject the person performing same to civil action when so negligently performed as to constitute a violation of law, and to be the proximate cause of injury to third persons.
3. The rule of respondeat superior does not apply where public officers are sought to be bound by the negligence of subordinate officers or employees, unless there has been a failure to exercise due care in the selection of such subordinates, or the officers have actual knowledge of the negligent acts of their employees, and their knowledge, coupled with a refusal to correct or properly instruct such employees, amounts to a ratification of such negligent act.
The plaintiff in error, L. D. Mathis, herein referred to as the plaintiff, brought suit in Tift Superior Court against J. G. Nelson, herein referred to as the defendant. The petition alleges that the defendant is warden of Tift County and as such has control of county roads, their maintenance and upkeep, county road equipment and the manner in which it is used for the maintenance of the county roads. At approximately 5:30 a. m. on the morning of September 13, 1941, petitioner's son collided with a tractor and drag machine which was being operated under the defendant's supervision and direction. The tractor was moving toward the plaintiff's automobile on the left hand side of the road, without lights, and the driver of the plaintiff's automobile was unable to see the machine until the collision occurred, due to the fact that the defendant was also approaching the plaintiff's car in another automobile and plaintiff's son, the driver, was blinded by the lights of the car and the dust resulting from the speed thereof. It was further alleged by amendment that the defendant had passed the tractor within a space of several minutes immediately preceding the collision, and knew that it was being operated on the left side of the road and without lights, but that the defendant failed to direct the driver thereof not to operate the tractor in such negligent manner.
The defendant demurred to the petition on the grounds that it failed to set forth a cause of action; that it showed no liability to the plaintiff on the part of the defendant, and that the defendant could not be charged with the negligence of the driver of the tractor.
To the ruling of the court sustaining the demurrers and dismissing the action plaintiff excepts.
Briggs Carson, Jr., Tifton, for plaintiff in error.
TOWNSEND, Judge (after stating the foregoing facts).
1. The first question to be decided here is whether or not the plaintiff has affirmatively alleged any act of negligence as the proximate cause of the collision referred to. In this regard, it is doubtful that the mere fact that a tractor and drag machine engaged in working the road is on the left hand side thereof would be a violation of Code, 68-303 or § 105-112 relating to motor vehicles passing on the right, as contended. It may often be necessary to work a road machine on the left side of the road, or...
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Coffey v. Brooks County
...supra at 97, 395 S.E.2d 275; see also Nelson v. Spalding County, 249 Ga. 334, 336(2)(a), 290 S.E.2d 915 (1982); Mathis v. Nelson, 79 Ga.App. 639, 642, 54 S.E.2d 710 (1949). Thus, in temporarily closing the road, putting out warnings on the road of the hazard, or notifying the appropriate co......
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...warden for omissions in connection with that duty unless his acts were "wilful, malicious, or corrupt"). Compare Mathis v. Nelson, 79 Ga.App. 639, 642, 54 S.E.2d 710 (1949) (where warden had personal knowledge that prisoner was driving truck in negligent manner, warden could be held liable ......
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Ballenger Paving Co. v. Gaines
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