Southland Butane Gas Co. v. Blackwell

• Decision Date: 14 October 1954
• Docket Number: No. 35142,No. 1,35142,1
• Citation: 91 Ga.App. 277,85 S.E.2d 542
• Parties: SOUTHLAND BUTANE GAS CO. v. BLACKWELL
• Court: Georgia Court of Appeals

Page 542

85 S.E.2d 542

91 Ga.App. 277

SOUTHLAND BUTANE GAS CO. v. BLACKWELL.

No. 35142.

Court of Appeals of Georgia, Division No. 1.

Oct. 14, 1954.

Rehearing Denied Dec. 8, 1954.

Syllabus by the Court

The court did not err in overruling the demurrers to the petition and to the amendment thereto. The verdict was supported by the evidence, no errors appear in the charge to the jury, and the court did not err in denying a new trial.

Floyd H. Blackwell brought suit against Southland Butane Gas Company to recover the value of the life of his son, Loyal F. Blackwell, who was alleged to have been struck and killed by the defendant's truck on a public road in Cobb County on the night of March 27, 1953. It was alleged that Loyal Blackwell, age 21, was walking west on his right side of Roberts Road, in front of B. F. Eller's residence, when Louis Hill, the defendant's employee, drove the defendant's truck into him from the rear, as a result of which he was injured and died; and that the defendant's truck, traveling at more than 35 miles per hour, had just come around a curve and over the crest of a hill without reducing its speed. Various acts of negligence were alleged.

The defendant company answered, denying its negligence, and alleging that Blackwell was lying in the road with his feet at the center and his head toward the north side of the road, at a point some 15 feet from the crest of a hill; that he was dressed in a blue shirt and overalls, the color of which blended with the black surface of the highway; that, when the body was discovered, the defendant's driver did everything possible to avoid striking him; and that the plaintiff's son was either drunk or asleep.

The plaintiff amended his petition by adding two counts, substantially the same as the original petition, except that in the second count it was alleged that Blackwell was 'on the north side of said Roberts Road lying in a prone position with his head on the north side of said road and his body and feet extending toward the south side of said road, he having stumbled or fallen down on said road, but that his entire body was on the north side of the centerline thereof.' In the third count it was alleged that Blackwell was 'sitting on the north side of said Roberts Road at a point in front of the residence of B. F. Eller.' The defendant's demurrers to the petition were overruled, and the defendant assigns error on that judgment. After the trial of the case, resulting in a verdict for the plaintiff, the defendant moved for a new trial, and error is assigned on the denial of its motion.

J. G. Roberts, Marietta, John A. Dunaway, Atlanta, for plaintiff in error.

Gordon M. Combs, Marietta, for defendant in error.

NICHOLS, Judge.

1. The defendant demurred to the allegations, in paragraph 16 of count two, that the driver of the defendant's truck 'failed to anticipate the presence of Loyal Blackwell on said road and failed to give any warning of his approach to the said Loyal Blackwell,' and that the driver had not 'used ordinary care to anticipate the presence of the deceased on said road,' and to the charges of negligence in failing to anticipate the presence of Loyal Blackwell on the road, in failing to give notice or warning of the approach of the truck to Loyal Blackwell, and in failing to use ordinary care to steer the truck away from the plaintiff's son the avoid striking him. The grounds of the demurrer were: (1) these allegations were conclusions of the pleader without facts constituting actionable grounds of negligence; (2) the petition does not show why the defendant was under a duty to anticipate Blackwell's presence or to give him warning, when the defendant had no knowledge of his presence, since it was alleged that Blackwell was lying in a prone position in the road without other facts putting the defendant on notice of his position; and (3) the allegation that the defendant failed to steer the truck away from Blackwell fails to state how and wherein the defendant failed to use ordinary care. The defendant also demurred to corresponding allegations in the third count, upon the same grounds. The facts alleged are that the defendant's driver did not keep a proper lookout and anticipate the presence of the plaintiff's son on the highway, nor warn him of the truck's approach, nor steer the truck away from him. Under the allegations of the second and third counts, the plaintiff's son was already on the highway, in a sitting or prone position, and his presence was sufficient to put the defendant's driver on notice. 'The driver of an automobile is bound to use reasonable care, and to anticipate that persons along a public street or highway and other persons having equal rights with him may be there. The driver has no right to assume that the road ahead of him is clear, but he must keep a vigilant lookout ahead for pedestrians in traffic.' Claxton v. Hooks, 68 Ga.App. 383, 385, 23 S.E.2d 101, 103; O'Dowd v. Newnham, 13 Ga.App. 220(1, 2), 80 S.E. 36; He-Po Gas, Inc., v. Roath, 87 Ga.App. 827, 832, 75 S.E.2d 451. It was alleged that the plaintiff's son was just over the crest of a hill, and Code § 68-303(j) requires the operator of a motor vehicle to sound his horn 'when approaching points on the highways where the view ahead is not clear.' Whether in the exercise of ordinary care the defendant's driver should have done what he was alleged not to have done, was a question to be passed upon by the jury. The court did not err in overruling these demurrers.

The court also overruled a demurrer to the amendment of August 10, 1953, in which the plaintiff set up a charge of negligence on the part of the defendant in driving its truck at a greater speed than was reasonable and safe, and without having due regard to the conditions then existing, including the width, grade, character, and common use of the highway, and so as to endanger the life of the plaintiff's son, [adding by amendment of August 11, 1953:] in driving said truck at a greater rate of speed than 35 miles per hour. These allegations were contended to have been conclusions reached by the pleader without stating how or wherein or when the defendant was charged with driving the truck at a greater speed than was reasonable and safe, and without stating the speed claimed to have been greater than was reasonable and safe. The speed alleged was 35 miles per hour, at the time and place of the plaintiff's son's injury, and the width, grade, and character of the highway were alleged. The demurrer was without merit and was properly overruled.

2. In support of the general grounds of the motion, and in connection with several of the special grounds, the movant contends that the plaintiff could not recover as a matter of law in this case, under the pleadings and the undisputed evidence, for the reason that a person while grossly negligent himself has no right to expect diligence from others, but is bound to anticipate that others may fail in diligence as he has done and must guard against negligence which he might not discover until too late. See Central R. & Banking Co. v. Smith, 78 Ga. 694(4), 3 S.E. 397, in which the foregoing rule was applied in the case of a trespasser upon the railroad's tracks. Further contentions are advanced, the substance of which is that Blackwell's negligence was the proximate cause of his death.

The evidence showed that the defendant's truck driver, in proceeding along Roberts Road generally from east to west, headed first north and then west as he rounded a curve and went up a hill, and then drove along a fairly level, straight stretch of the righway for 100 feet to B. F. Eller's mail box. From this mail box, looking back along the curve, the road was visible for 400 feet. Although the road was nearly level at the top of the hill, there was evidence that it reached a crest some 10 or 15 feet east of Eller's mail box. The crest was hardly discernible on the photographs of the scene introduced by the defendant. The paved road was about 18 feet wide, with shoulders extending three or four feet beyond the pavement. A driveway to Eller's house came into the road east of his mail box. This was the scene of Blackwell's fatal injuries.

Concerning the conduct of the plaintiff's son, the evidence showed that he got off work at about 5 or 5:30 on March 27, 1953. He arrived at his father's at sundown, with his brother Glenn, age 27, and his nephew, James F. Bettis, age 17. They ate supper, having previously consumed a pint of whisky. Glenn and Bettis left the house at 6:30 or 7. The plaintiff asked his son several times not to leave, as his son had whisky on his breath, but he went out and met Bettis and Glenn at another house Glenn left, and Bettis went with the plaintiff's son, on foot, towards Emerson Blackwell's house. They stopped on the porch at Tom Sargeant's house and asked for a ride, but went on when they found that Sargeant's son was not there. Blackwell did not appear to be drunk then, about 35 or 40 minutes before he was struck. Bettis and Blackwell came up Roberts Road to within 75 or 100 feet of the Eller house; Bettis asked Blackwell to go back home, but Blackwell would not go with him and continued to walk along the right side of the road. Bettis walked the halfmile back to the plaintiff's house, taking from 15 to 30 minutes, and when he arrived the plaintiff had already heard of his son's death.

Glover Eller had come to his father's house at about dark and had been there for about half an hour with B. F. Eller's son-in-law, Leonard Dunn. They saw Blackwell near the mail box, 150 feet from the house. He was drunk, and was cursing and hollering for 15 or 20 minutes before the truck ran over him. Two or three cars had passed, and, in the light from their headlamps, Blackwell could be seen from the house. When they heard a truck coming, they looked out of the house, but did not see Blackwell in the same place near the driveway. The heard a thud as the...