Mealey v. Slaton Machinery Sales, Inc.

• Decision Date: 14 February 1975
• Docket Number: No. 73-3456,73-3456
• Citation: 508 F.2d 87
• Parties: Mrs. Karen Sue MEALEY, on behalf of herself and the minor children of Jimmy Dale Mealey, and as Administratrix of the Estate of Jimmy Dale Mealey, Plaintiff-Appellee, v. SLATON MACHINERY SALES, INC., Defendant-Appellant. RYDER TRUCK RENTAL, INC., Plaintiff-Appellee, v. SLATON MACHINERY SALES, INC. and William Taft Bryson, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 87

508 F.2d 87

Mrs. Karen Sue MEALEY, on behalf of herself and the minor

children of Jimmy Dale Mealey, and as

Administratrix of the Estate of Jimmy

Dale Mealey, Plaintiff-Appellee, v. SLATON MACHINERY SALES, INC., Defendant-Appellant.

RYDER TRUCK RENTAL, INC., Plaintiff-Appellee, v. SLATON MACHINERY SALES, INC. and William Taft Bryson,

Defendants-Appellants.

No. 73-3456.

United States Court of Appeals, Fifth Circuit.

Feb. 14, 1975.

Edward L. Savell, Atlanta, Ga., for defendant-appellant.

Kyle Yancey, Atlanta, Ga., for Mealey and others.

Robert B. Hocutt, Atlanta, Ga., for Ryder Truck Rental.

Appeals from the United States District Court for the Middle District of Georgia.

Before WISDOM and CLARK, Circuit Judges, and GROOMS, District Judge.

GROOMS, District Judge:

This is an appeal by Slaton Machinery Sales, Inc. from a judgment on a jury verdict in favor of Karen Sue Mealey on behalf of herself and her minor children, and as Administratrix of the estate of her deceased husband, Jimmy Mealey, for his death; and an appeal by Slaton and William Taft Bryson from a judgment likewise on a jury verdict in favor of Ryder Truck Rental, Inc. for property damage. The actions arose out of a collision during the night of May 2, 1972, on I-75 near Perry, Georgia, between a truck owned by Ryder, leased to Owens-Illinois Glass Company, and driven by its employee, Herman Rutherford, and a truck owned by Slaton and driven by Bryson. Mealey, also an employee of Owens-Illinois, was asleep in the Ryder truck at the time of the collision which occurred when the Ryder unit ran into the rear of the Slaton unit.

In brief summary the disputed facts were whether Rutherford through inattention or otherwise was solely responsible for the collision, or whether Bryson was negligently driving without lights, angling on the highway, or driving at a speed less than 40 ¹ miles per hour, and thereby proximately contributed to the collision.

The drivers were the only eyewitnesses to the collision who testified.

Rutherford testified that at the time of the collision he was driving 'probably around 60 miles per hour;' his lights were on low beam; he had a vision range of 50 to 70 feet; he was approximately 50 feet behind the Slaton unit when he first saw it; it was traveling at a speed of no more than 15 to 20 miles per hour and was at an angle on the road with the left front of the trailer over the southbound center line; he hit the trailer right in the center, he could have seen the Slaton unit from a quarter to half a mile if it had had its lights on; and that he could probably have avoided the collision if he had seen the Slaton unit when he was from 150 to 250 feet away.

Bryson testified that he was traveling in a straight line and not at an angle and at a speed of approximately 45 miles per hour; that his lights were burning; that the force of the impact knocked the trailer loose from the tractor, causing him to lose his braking power; and that his tractor came to a stop approximately two blocks away, leaving the trailer sitting in the road near the point of impact.

Appellants assert error for the refusal of their charge No. 6. ² After an extended colloquy over the applicability of the doctrine of last clear chance or avoidance of consequences, the court concluded that notwithstanding the fact that any negligence of Rutherford was not imputed to Mealey or to Ryder, a bailor of the truck, the doctrine was applicable but stated that it would give its own avoidance charge, which was practically 'the same as your No. 6.' The court then gave its own charge. Following objections of appellee's counsel and further colloquy, the court called the jury back and withdrew its charge, told the jury that it was incorrect, and to 'forget that the doctrine of avoidance and last clear chance is but a doctrine of proximate cause under another name.'

It will be readily observed that charge 6 postulates a finding against the plaintiffs, if Rutherford's failure to avoid hitting the defendant's unit intervened and became the proximate cause of the collision rather than the sole proximate cause of it. Unless the last clear chance or avoidance doctrine was applicable, and we hold that it was not, the charge ignores the principle of law that there may be more than one proximate contributing cause of an injury.

The court's initial charge was based upon Louisville & Nashville R. Co. v. Patterson, 77 Ga.App. 406, 49 S.E.2d 218.

In Georgia Power Co. v. Blum, 80 Ga.App. 618, 57 S.E.2d 18 (1949), the court stated that there was language in Patterson that might indicate that where one has an opportunity to avoid the consequences of another's negligent act and fails to do so, such failure amounts to the sole proximate cause of the injury to a third person. The court expressed the view that it did not believe that the language was intended to be so construed, 'as this rule of law does not apply where a third party, not himself at fault, sues joint tort-feasors.'

The court in its corrected charge followed Atlantic Coast Line R. Co. v. Coxwell, 93 Ga.App. 159, 91 S.E.2d 135 (1955), which had expressly overruled Patterson, and ruled:

'This code section (105-603) and these rules of law-- the avoidance doctrine and the last-clear-chance doctrine-- apply only where there is a negligent plaintiff . . .. What is here held, among other things, is that the last-clear-chance doctrine cannot be applied in a case where the plaintiff is guilty of no negligence.'

To same effect, Georgia Northern Ry. Co. v. Hathcock, 93 Ga.App. 72, 91 S.E.2d 145, decided at approximately the same time.

Coxwell has been consistently followed. In Hirsch v. Chapman, 109 Ga.App. 444, 136 S.E.2d 409 (1964), the court said:

'In Atlantic Coast Line R.R. Co. v. Coxwell, 93 Ga.App. 159, 91 S.E.2d 135, it was finally made clear that last clear chance does not apply against a non-negligent plaintiff.'

The doctrine was restated in Walker Hauling Co. v. Johnson, 110 Ga.App. 620, 139 S.E.2d 496. And in Stroud v. Willingham, 126 Ga.App. 156, 190 S.E.2d 143 (1972), the court clearly recognized the rule.

The court specifically charged the jury that neither plaintiff would be entitled to recover if the negligence of Rutherford was the sole proximate cause of the collision.

There was no error in refusing charge 6. Nor did the court err in withdrawing its erroneous charge and substituting a correct charge. It was the court's duty to follow that course when it discovered that its initial charge did not correctly state the law of Georgia. At the time the corrected charge was given, there was no motion for mistrial or other objection based on any possible confusion of the jury resulting from the court's action.

Since we have held that under the facts and applicable law the last clear chance or avoidance of consequences doctrine was inapplicable we need not explore the question as to whether actual knowledge of peril is required or whether constructive knowledge will suffice.

Appellants insist that the court erred in its corrected charge in charging:

'I further...