Southern Stages v. Clements

• Decision Date: 24 May 1944
• Docket Number: 30445.
• Citation: 30 S.E.2d 429,71 Ga.App. 169
• Parties: SOUTHERN STAGES, Inc., v. CLEMENTS.
• Court: Georgia Court of Appeals

30 S.E.2d 429

71 Ga.App. 169

SOUTHERN STAGES, Inc., v. CLEMENTS.

No. 30445.

Court of Appeals of Georgia, Division No. 1.

May 24, 1944

J Luther Clements sued Southern Stages, Inc., a common carrier for damage to personal property. We deem it better to set forth certain paragraphs of the petition: "3. That said defendant has injured and damaged your petitioner in the sum of $700, by reason of these facts: On the 7th day of July 1942, between the hours of eleven o'clock a.m., and two o'clock p.m., a truck belonging to your petitioner, and loaded with sacks of feed, was being driven in the direction of Eatonton, on the State and Federal highway between Eatonton and Macon, and was approaching the concrete highway bridge over Little River on said highway. The said bridge is a very high one, and the approach from the Macon side is a road graded into the side of a hill, and is down grade. Three or four hundred yards from said bridge, when your petitioner's truck was being driven at a speed not in excess of thirty-five miles per hour, a bus belonging to and operated by said defendant, passed said truck from the rear and continued toward said bridge in front of and followed by said truck, which was following said bus at a distance of about 70 yards. Upon reaching the end of said bridge, and before entering thereon, without a warning signal of any nature, the said bus was suddenly stopped directly in front of your petitioner's said truck, blocking the entrance to said bridge so that the driver of petitioner's truck was obliged, because he could not stop in time to avoid colliding with the rear of said bus (which was filled with passengers), to turn suddenly to the left in the effort to pass the said bus after it had stopped, and to apply brakes in order to reduce his speed, with the result that in the sudden emergency the truck got out of control, and left the road at the end of said bridge, falling down the bank of the river a distance of about 30 feet. 4. Your petitioner shows that when the said bus was stopped at the end of said bridge (there being no apparent necessity nor reason for so stopping) there was left for said truck, on the left of said bus, a space between said bus and the end of the railing of said bridge so narrow that unless headed straight the said truck must have struck either the rear of said bus or the bridge railing; that having just passed said truck, defendant's driver must have known that it was following, at a short distance, and was loaded, and he should have anticipated that said truck might not be able to stop as the bus did. 6. Your petitioner specifies as negligence, and as the proximate cause of said damage, the act of defendant's driver and servant in stopping the said bus immediately in front of your petitioner's truck, and in causing an emergency in which it was necessary to turn the said truck suddenly to the left to avoid a collision with the rear of the defendant's said bus, and damage to both vehicles and injury to defendant's passengers; and in stopping the said bus on the highway, without any warning signal whatever, and without turning out of the traffic lane." In addition, the amount of the damage is alleged.

The company demurred generally, "because said petition fails to set out any cause of action," and "because said petition shows on its face that the plaintiff acting by and through its servant or agent was negligent, and that the plaintiff's negligence was the proximate cause of his injury and damages." The court, in overruling the demurrer, stated: "Upon consideration of defendant's general demurrer to plaintiff's petition *** it is ordered that said demurrer be, and the same is hereby overruled, on authority of Minnick v. Jackson, 64 Ga.App. 554, 13 S.E.2d 891; Georgia Stages, Inc., v. Miller, 67 Ga.App. 27, 30, 19 S.E.2d 337; Morrow v. Southeastern Stages, Inc., 68 Ga.App. 142, 148, 22 S.E.2d 336; Wilson v. Pollard, 62 Ga.App. 781, 786, 10 S.E.2d 407; Payne v. A. B. C. Truck Lines, Inc., 61 Ga.App. 36, 38, 5 S.E.2d 590; Cone v. Davis, 66 Ga.App. 229, 17 S.E.2d 849, and Code, Section 68-314. The cases of Horton v. Sanchez, 57 Ga.App. 612, 195 S.E. 873, and Barnwell v. Solomon, 59 Ga.App. 507, 1 S.E.2d 463, cited by defendant, are distinguishable on the facts from the instant case." The corporation brought the case here by bill of exceptions to this judgment.

Martin, Martin & Snow, of Macon, for plaintiff in error.

M. F. Adams, of Eatonton, for defendant in error.

GARDNER Judge.

1. Counsel for the plaintiff in error as usual in a very able and clear manner set forth an analysis of the petition from their viewpoint, which we quote: "(1) This accident happened in broad open daylight between 11 o'clock a.m and 2 o'clock p.m. (2) The highway was straight, but there was a steep decline leading to a bridge. (3) Both vehicles, namely the plaintiff's truck and the defendant's bus, were going in the same direction. The truck was following the bus at a distance of 70 yards, or 210 feet. (4) The rate of speed as these vehicles approached the bridge did not exceed 35 miles an hour. (5) The bus stopped suddenly at the end of the bridge. (6) The plaintiff in paragraph 4 admits there was sufficient space to pass on the left side of the bus if the truck had been going straight. (7) The petition does not allege a reduction of speed in going down a 'steep descent' or on approaching a bridge as required by Ga. Code, Section 68-303 (i). (8) The petition does not allege that the plaintiff's driver was free from negligence or that his brakes were in good condition." Counsel further enter into a discussion of the decision which the court named as the basis for the judgment, and refers this court to additional cases which are claimed to be controlling on this court, and under the principles of which it is contended this case should be reversed. The first additional one is State Highway Department v. Stephens, 46 Ga.App. 359, 167 S.E. 788. In that case the opinion reveals that the defendant's car was parked on a bridge in the highway, and that when the plaintiff reached the curb on the highway at about noon, the defendant's car was observed, and that when the plaintiff ascertained that the defendant's car was not moving it was too late for the plaintiff to stop his car in time to avoid the collision. The court stated that since it was not alleged in the petition at what distance the plaintiff was from the defendant's car when it was first observed parked upon the bridge, or at what rate of speed the plaintiff's car was being operated, the petition should be taken as alleging that the plaintiff was at such a distance from the defendant's car, and was operating his (the plaintiff's) car at such a speed that he should have controlled it and avoided the injury. In our opinion the facts of the case at bar are quite different from the cases c...