Ponder v. McKinzie
| Decision Date | 10 March 1954 |
| Docket Number | No. 2,No. 34988,34988,2 |
| Citation | 81 S.E.2d 551,89 Ga.App. 846 |
| Parties | PONDER v. McKINZIE |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. The trial court did not err in overruling the special demurrers which called for information bearing solely on the question of contributory negligence, which is an affirmative defense and must be pleaded.
2. Under the allegations of the petition, it was for the jury to determine whether the two defendants were guilty of negligence in any of the particulars charged, and, if so, whether the concurrent negligence of the two defendants, or the separate acts of either, constituted the proximate cause or causes of the injury.
Mrs. Gertrude McKinzie brought an action for damages in the Superior Court of Emanuel County against Estus Averett of that county, trading as Averett Cab Service, and P. H. Ponder of Morgan County. The material allegations of her petition are substantially as follows: (1) The defendants have injured Mrs. McKinzie in the sum of $63,570. (2) Rufus Williams at the time of the accident was the agent, servant, and employee of P. H. Ponder, and (3) was acting within the scope of his employment. (4) At the time of the accident Thomas J. Coxwell was the agent, servant, and employee of Averett and was acting within the scope of his employment. (5) At the time of the accident and prior thereto, Mrs. McKinzie was dependent upon her son, Jack McKinzie, age 21, for support, and he during his lifetime contributed to her support. (6) In the accident her son lost his life, and the plaintiff, as his mother, brings this action for the full value of his life. The son left neither wife nor child surviving him. (7) On October 17, 1952, between 8 p. m. and 8:30 p. m., Jack McKinzie was riding 'as a guest' in the taxicab belonging to Averett and driven by Coxwell. McKinzie had no control over the automobile. (8) On the date in question Williams had parked Ponder's truck on the paved surface of Highway 57 in Emanuel County, facing Kite, Georgia, and without leaving any room for any other vehicle to pass. The cab driven by Coxwell in which McKinzie was riding was also traveling toward Kite. (8a) The truck was parked on the highway at a point approximately 800 feet south of the Gumlog Road intersection and approximately 2.2 miles north of the city limits of Swainsboro and at a point just over the crest of a hill in a northerly direction, the direction in which the taxicab was travelling. Because of the presence of the hill, the lights on the taxicab could not reveal the presence of the truck until the taxicab had come over the crest of the hill and was within approximately 100 feet of the truck. (9) There were no lights or flares on the truck to notify the traveling public that it was parked on the highway, and the truck was left unguarded and without any person present to notify or signal the traveling public that it was parked on the highway. (10) Coxwell was driving the taxicab along the highway at a speed of 65 miles per hour, and ran into the parked truck, which accident resulted in McKinzie's death. (11) On the date in question it was extremely cloudy and, in spite of this condition of the weather, Coxwell continued to drive the taxicab at the high and excessive rate of speed aforesaid. Because it was night and the visibility was poor, McKinzie could not detect the excessive speed of the taxicab until a few seconds before the collision. As the excessive speed of the taxicab became apparent to McKinzie, Ponder's truck, parked in the roadway ahead, became visible to him. He immediately cried out, 'Look out for that truck,' but nevertheless the taxicab rammed into the rear of the truck and caused his death. (12) Averett, by and through his agent, Coxwell, was grossly negligent and negligent per se in operating the taxicab in excess of 55 miles per hour in violation of the State law. He was grossly negligent in failing to keep a proper lookout ahead so as to detect the presence of vehicles in front of him, and in driving at an excessive rate of speed on an extremely cloudy night when his vision was impaired by weather conditions, and in failing to apply his brakes and to bring the taxicab to a stop before striking the parked truck. (13) Ponder was negligent in parking the truck on the highway without leaving any light on it and in leaving the truck parked on the highway unguarded and without any person to notify the travelling public of its presence. He was also negligent in failing to drive the truck onto the shoulder of the highway where it would not block traffic, and in parking the truck on the highway without displaying a red light on the rear of the truck which would be visible for 100 feet or more, and in failing to place flares near the truck or to give any other warning of the truck's presence on the highway. (14) The joint and concurrent acts of negligence of the two defendants set out operated to produce and were the proximate cause of McKinzie's death, and McKinzie was free from any negligence contributing to his death. (15) The defendants jointly and concurrently brought about the negligence resulting in McKinzie's death. (16) The defendants, as joint tortfeasors, brought about the combination of negligence which jointly and concurrently resulted in McKinzie's death. (17) The several concurrent acts of negligence were the proximate cause of McKinzie's death. (18) The defendants and/or either of them could have easily foreseen or anticipated that, due to their joint and concurrent acts of negligence, the accident which did take place would likely occur as a result of such conduct, acts, and negligence of the defendants. (19) The defendants and/or either of them acting with ordinary prudence could have foreseen that the death could result from their combined, joint, and concurrent acts of negligence alleged. (20) At the time of his death McKinzie was 21 years of age and had a life expectancy of 40.75 years. (21) He was contributing at least $1,560 per year to the plaintiff's support and, in accordance with his life expectancy, would have contributed the amount sued for. (21a) Just prior to his death McKinzie was capable of earning and did earn $40 per week. (22) McKinzie suffered enumerated injuries in the collision which resulted in his death. (23) The following specific acts of negligence on the part of the defendants are alleged: Averett was grossly negligent as follows: (a) in operating the taxicab at an excessive rate of speed and at more than 55 miles per hour in violation of law; (b) in operating the taxicab at such excessive rate of speed at a time when he knew that it was extremely cloudy; (c) in failing to keep a proper lookout ahead to detect the presence of vehicles in front of him; (d) in driving the taxicab at such excessive rate of speed when his vision was impaired by weather conditions; (e) in failing to apply his brakes and to bring the taxicab to a stop before striking the parked truck. (24) Ponder was negligent (a) in parking the truck on the paved surface of the highway, near the center line thereof, in violation of Code, § 68-314, which amounted to negligence per se; (b) in leaving the parked truck on the highway without any attendant; (c) in parking the truck on the highway without leaving sufficient room for another vehicle to pass; (d) in parking on the highway instead of on the shoulder of the highway; (e) in failing to leave any lights burning on the parked truck; (f) in failing to drive the truck onto the shoulder of the highway where it would not block traffic; (g) in parking the truck on the highway without displaying a red light on the rear of the truck; and (h) in failing to place flares near the truck or to give any other signal or warning of the truck's presence on the highway. (25) The aforesaid acts of negligence on the part...
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