Smith v. Am. Oil Co

• Decision Date: 09 June 1948
• Docket Number: No. 31967.,31967.
• Citation: 49 S.E.2d 90
• Parties: SMITH. v. AMERICAN OIL CO. et al.
• Court: Georgia Court of Appeals

49 S.E.2d 90

SMITH.

v.AMERICAN OIL CO. et al.

No. 31967.

Court of Appeals of Georgia, Division No. 2.

June 9, 1948.

Rehearing Denied July 23, 1948.

[COPYRIGHT MATERIAL OMITTED]

Syllabus by the Court.

1. The evidence sustains the verdict.

2. (a) Special grounds 1 and 2: One who knowingly and voluntarily takes a risk to his person, the danger of which is so obvious that the act of taking such risk in and of itself amounts to a failure to exercise ordinary diligence for his own safety cannot hold another liable for damages for injuries thus occasioned. This is usually a jury question. Under the evidence in this case, it is a jury question.

(b) As to whether it was necessary for the deceased in the performance of his duty, to ride on the left fender of the truck of his employer, and whether so riding, if not necessary, had any causal connection with the collision, presents a question of fact and not of law under the evidence.

(c) "In order for a party to be held liable for negligence, it is not necessary that he should have been able to anticipate the particular consequences which ensued, it is sufficient, if in ordinary prudence he might have foreseen that some injuries would result from his act or omission and that consequences of a generally injurious nature might result."

(d) One who violates a municipal ordinance regulating the use of motor vehicles is bound to anticipate that others like himself might violate a municipal traffic ordinance. In such event it is incumbent for such an one to guard not only against negligence on the part of others which he might discover in time to avoid the consequences, but also against the ordinary danger of their being negligent which he might not discover until too late for him to avoid it.

(e) Where the separate acts of tort feasors concur as the proximate cause of an injury, the injured person may bring his petition for recovery against one of such joint tort feasors only and in such event the plaintiff is not entitled to recover if the evidence shows that the negligence of the plaintiff equals to or is greater than that of the defendant. In such a situation, it is not error for the court to fail to charge that the plaintiff is entitled to recover if his negligence is less than the aggregate negligence of the joint tort feasors.

(f) Special ground 8 shows no cause for reversal, for the reasons set out in the body of the opinion.

(g) The ordinances which were defensively pleaded and introduced without objection, and the evidence in connection therewith authorized the charge of the court to which exception is urged in special ground 5.

(h) Special ground 9 is without merit for the reasons given in the body of the opinion.

Error from City Court of Colquitt County; Robert H. Cranford, Judge.

Action by Maude Smith against American Oil Company and others to recover for wrongful death of plaintiff's husband. To review a judgment denying plaintiffs motion for new trial after verdict for defendants, plaintiff brings error.

Affirmed.

Mrs. Maude Smith, whom we shall call the plaintiff, brought her petition seeking recovery for the value of the life of her husband, whom we shall call the deceased and whom she alleges was negligently killed by the defendants. The suit was against the American Oil Company, a foreign corporation, and George Sears, the distributing agent of the oil company, and Joe Seay, the operator of the truck of the oil company. We shall refer to them as occasion arises as the oil company, agent Sears, and defendant driver Seay. The petition alleges that the defendant driver Seay at the time of the injuries to the deceased, was the agent of the oil company, acting within the scope of his employment on the occasion in question. At the time of the collision the deceased was employed by the Georgia Packing Company of Thomasville, Georgia, whom we shall call the packing company, and the deceased was engaged in the transportation of meat between the plant of the packing company and the freezer plant located at the Thomasville Ice Company in Thomasville. The meat was being hauled in an enclosed refrigerator truck on which it was allegedly necessary for the deceased to ride back and forth to assist in the loading of the meat into the packing company truck at one place, and unloading the same at the other place. The operator of the packing company truck was one Calvin House. It is further alleged that about 11 o'clock on February 9, 1944, while Calvin House was operating the packing company truck as it was returning from the freezer plant of the ice company with a load of meat in tended for delivery to the United States Army, the collision occurred. In addition to the above summary of the allegations of the petition, it further alleged:

"Paragraph 9. At said time said truck was fully loaded, the front seat was occupied by the driver and Corporal Rim-inoski, Army Meat Inspector stationed at the plant of the said Georgia Packing Company, the available space in the rear of the body of the truck was occupied by two other employees of the Georgia Packing Company, and the truck having no running boards, Atwood Fowler, another employee of said packing company, was riding on the right fender and petitioner's husband was riding on the left fender of said truck.

"Paragraph 10. Said refrigerator truck was proceeding in an easterly direction on Jefferson Street in said City of Thomasville, Georgia, at a rate of speed of between five and ten miles an hour, and as it approached the intersection with Crawford Street, above which intersection is located an electric blinker or caution light, the driver brought said truck almost to a dead stop and shifted into low gear, and entered and was crossing said intersection at a rate of speed not in excess of five miles an hour.

"Paragraph 11. As House, the driver of the truck on which petitioner's husband was riding, was about to enter said intersection, he observed the delivery truck of the American Oil Company proceeding southward on Crawford Street and approaching the intersection from his left hand side, but at that time still a distance of seventy or eighty feet away. As he shifted into low gear and proceeded into and across said intersection said House assumed that the driver of the oil company truck, the defendant Joe Seay, would slow down and yield the right of way, because, first, the said House was first to reach and enter said intersection, and, second it was the legal duty of the driver of said oil truck, approaching from House's left, to yield said right of way.

"Paragraph 12. Notwithstanding the legal duty of the driver of said oil truck to yield the right of way to said House, inthe circumstances above set out, the said Seay proceeded into said intersection, and without stopping or even slowing down said oil truck, and without any effort to avoid a collision with the truck on which petitioner's husband was riding until he was right on the same and it was too late to avoid a collision therewith, he swerved said oil truck to the left, drove the same into the left front fender and left door of the packing company truck, striking petitioner's husband with such force and violence that he was knocked from said left fender, thrown on the pavement and run over by said oil truck and instantly killed.

"Paragraph 13. Said collision and the death of petitioner's husband resulting therefrom were directly and proximately caused by the following acts of negligence on the part of the defendant Joe Seay, who was then and there the servant and employee of the defendants American Oil Company and George Sears and was engaged in the usual business for which he was employed by them, in driving said oil truck into and against the truck on which petitioner's husband was riding, to wit:

"(a) In failing to keep and maintain a constant and vigilant lookout ahead in approaching and entering said intersection which is on two of the most prominent thoroughfares of said City of Thomasville with constant traffic thereon.

"(b) In failing to reduce the speed of said oil truck at the intersection of said highways, as expressly required by law.

"(c) In operating said truck in violation of the laws of the State of Georgia in that said truck was not only not equipped with good and serviceable brakes, as expressly required by law, but was in fact totally without any brakes at all when said collision occurred, and the condition of said brakes was well known to the defendants.

"(d) In attempting to cross said intersection at such a rate of speed that he was unable to stop said oil truck when he knew that it had no brakes capable of controlling and stopping the same in the circumstances alleged.

"(e) In entering and attempting to cross said intersection, after it had already been entered and occupied by the driver of the packing company truck, without yielding the right of way to said packing company truck which had approached and entered said intersection from the right hand side of the driver of said oil truck, it being expressly provided by law 'that the operator of a vehicle shall give the right of way to an operator of another vehicle approaching from the right on an intersecting highway.'"

The remaining allegations of the original petition have to do with the life expectancy of the deceased and the value of his life. The plaintiff amended her petition as follows: " * * * by adding to sub-paragraph (b) of paragraph 13, a comma in lieu of the period at the end thereof, followed by the following words and phrases, to-wit, a valid ordinance of the City of Thomasville, Georgia, then in force and effect and providing as follows: 'Vehicles shall slow down to a rate of speed not greater than twelve miles per hour, upon crossing intersecting streets.'"

All of the defendants filed answers denying the material allegations of the plaintiff's petition, and thereafter filed amendments as follows:

"1. That there was on February 9, 1944, at the time said accident occurred, in force...