Stern v. Wyatt

• Decision Date: 19 November 1976
• Docket Number: No. 1,No. 52748,52748,1
• Citation: 140 Ga.App. 704,231 S.E.2d 519
• Parties: Ruth A. STERN v. Gwendolyn W. WYATT et al
• Court: Georgia Court of Appeals

Page 519

231 S.E.2d 519

140 Ga.App. 704

Ruth A. STERN v. Gwendolyn W. WYATT et al.

No. 52748.

Court of Appeals of Georgia, Division No. 1.

Nov. 19, 1976.

Rehearing Denied 8, 1976.

Johnson, Harper, Ward & Stanfield, Cullen M. Ward, William C. Lanham, Atlanta, for appellant.

Hurt, Richardson, Garner & Todd, T. Cullen Gilliland, Frederick M. Gleaton, Arthur Glaser, Harris Bostic, Atlanta, for appellees.

STOLZ, Judge.

The appellant, the widow of Morris K. Stern, sued the appellee for the wrongful death of her husband. The trial court granted summary judgment in favor of the appellee.

At about dusk on September 6, 1973, the appellee negligently lost control of her automobile near Interstate 285 in Atlanta. She broke through a chain-link fence and collided with Mr. Stern's car, which was traveling on the freeway. Stern's vehicle spun around and came to a stop facing the wrong direction in the middle of the three northbound lanes of traffic. Mr. Stern emerged from his car, appearing to suffer only from a cut lip, and reached a position of safety on the side of the highway to wait for the police. He was visibly upset and excited. Ten to twenty minutes later, before the police arrived, Stern returned to his car, apparently to obtain a piece of paper, and was killed by a passing car while in the roadway.

The appellee contends that these facts fail to show the existence of proximate cause linking the appellant's negligence with Mr. Stern's death and that, as a matter of law, Stern assumed the risk and failed to use ordinary care to avoid the appellee's negligence.

1. Summary judgment may not be granted if there is a genuine issue of material fact. Code Ann. § 81A-156(c) (Ga.L.1966, pp. 609, 660; 1967, pp. 226, 238). We hold that in this case there exists a genuine issue of material fact as to proximate cause. 'Questions of negligence and diligence and of cause and proximate cause and whose negligence constituted the proximate cause of the plaintiff's injuries are, except in plain, palpable and indisputable cases, solely for the jury, and the courts will decline to decide such questions . . . unless reasonable minds cannot differ as to the conclusions to be reached.' Hardy v. Brooks, 103 Ga.App. 124(1), 118 S.E.2d 492 (1961); Long Const. Co. v. Ryals, 102 Ga.App. 66(1), 115 S.E.2d 726 (1960).

In Georgia, the law regarding proximate cause has been stated as follows: "A defendant may be held liable where it appears that his negligence was the sole cause of the injury complained of, or that his negligence put in operation other causal forces which were the direct, natural, and probable consequences of the defendant's original act, or that the intervening agency could reasonably have been foreseen by the defendant as original wrong-doer." Reid v. Modern Roofing &c. Works, 89 Ga.App. 285, 289, 79 S.E.2d 31, 34 (1953); L. & N.R. Co. v. Ellis, 54 Ga.App. 783(2), 189 S.E. 559 (1936); see Higdon v. Ga. Winn-Dixie, 112 Ga.App. 500, 502-03, 145 S.E.2d 808 (1965); Natl. Upholstery Co. v. Padgett, 111 Ga.App. 842(8), 143 S.E.2d 494 (1965); Parsons, Inc. v. Youngblood, 105 Ga.App. 583(2), 125 S.E.2d 518 (1962). 'There may be more than one proximate cause of an injury. Shermer v. Crowe, 53 Ga.App. 418(3) 186 S.E. 224. It is no defense to an action for an injury resulting from negligence that the negligence of a third person contributed to cause the injury, if the negligence of the defendant was an efficient cause without which the injury would not have occurred. Rollestone v. Cassirer, 3 Ga.App. 161, 173, 59 S.E. 442.' Ponder v. McKinzie, 89 Ga.App. 846, 850, 81 S.E.2d 551, 555 (1954); Callahan v. Cofield, 61 Ga.App. 780, 782, 7 S.E.2d 592 (1940); see Buice v. Atlanta Transit System, 105 Ga.App. 795, 796-97, 125 S.E.2d 795 (1969). 'If the original negligent actor reasonably could have anticipated or foreseen the intervening act and its consequences, then the intervening act of negligence will not relieve the original actor from liability for the consequences resulting from the intervening act. That is a jury question.' Perry v. Lyons, 124 Ga.App. 211, 216, 183 S.E.2d 467, 470 (1971) (Emphasis supplied.); see Southern R. Co. v. Webb, 116 Ga. 152, 42 S.E. 395, 59 LRA 109 (1902).

It is certainly possible that the appellee could have foreseen the possibility of subsequent collisions with the Stern vehicle. It is a matter of common knowledge, at least to anyone withdriving experience, that there is a very high possibility of subsequent collisions on a busy freeway. It is also likely that persons might be in or around the disabled vehicle after the collision, either due to injuries sustained from the collision, or for some valid purpose, such as to move obstructions, deliver warnings to others, or to retrieve personal property from the vehicle, and that such parsons could be injured by any subsequent collisions. The appellant did not need to prove that the appellee might or should have seen the likelihood of the particular injury or harm, the extent of the harm, or the manner in which it occurred, but only that she should have anticipated that some injury or harm might result from her conduct. Willaims v. Grier, 196 Ga. 327, 337-38, 26 S.E.2d 698 (1943); Lewis v. Harry White Ford, Inc., 129 Ga.App. 318(3),199 S.E.2d 599 (1973); Mullis v. Chaika, 118 Ga.App. 11(1), 162...