Stone's Independent Oil Distributors v. Bailey, s. 45007-45009

• Decision Date: 11 June 1970
• Docket Number: Nos. 45007-45009,No. 1,s. 45007-45009,1
• Citation: 122 Ga.App. 294,176 S.E.2d 613
• Parties: STONE'S INDEPENDENT OIL DISTRIBUTORS v. J. W. BAILEY et al. C. B. MULLIS v. J. W. BAILEY et al. G. P. REGISTER et al. v. J. W. BAILEY et al
• Court: Georgia Court of Appeals

Page 613

176 S.E.2d 613

122 Ga.App. 294

STONE'S INDEPENDENT OIL DISTRIBUTORS v. J. W. BAILEY et al.

C. B. MULLIS v. J. W. BAILEY et al.

G. P. REGISTER et al. v. J. W. BAILEY et al.

Nos. 45007-45009.

Court of Appeals of Georgia, Division No. 1.

June 11, 1970.

Rehearing Denied July 29, 1970.

Certiorari Denied Sept. 15, 1970.

Harris, Russell & Watkins, Joseph H. Davis, Macon, for appellant Stone's Independent Oil Distributors.

Jones, Cork, Miller & Benton, E. Bruce Benton, Macon, for appellant Mullis.

Martin, Snow, Grant & Napier, George C. Grant, Macon, for appellant Register and others.

Adams, O'Neal, Steele, Thornton, Hemingway & McKenney, H. T. O'Neal, Jr., Macon, for appellees.

Syllabus Opinion by the Court

WHITMAN, Judge.

Plaintiff below, J. W. Bailey, brought an action to recover for personal injuries arising out of a pre-dawn collision involving two automobiles, a gasoline tank truck, and a passenger bus.

The evidence adduced at the trial shows that the incident occurred on the Mark Fitzpatrick-Jim Duncan Bridge which crosses the Ocmulgee River between Houston and Twiggs Counties. The bridge crosses the river in an east-west direction. It is 24 feet wide by 1,054 feet long and accommodates two lanes of traffic.

The plaintiff was not in a car when he was injured. He had been traveling west on the bridge riding in a car driven by Charles Wood. They had almost reached the opposite end of the bridge when they came upon a wrecked car which was upright but was sitting across the road with its front end up against their side of the bridge and blocking their lane of traffic. Wood brought his car to a 'normal stop' and then went around the car to the left and when they came abreast of it they could hear someone 'hollering for help.' The plaintiff suggested that they go ahead and pull off the end of the bridge and park on the side of the road, which they did. Both the plaintiff and Wood ran back out on the bridge to the wrecked car. Several other cars, traveling west, came around the wreck and proceeded on off the bridge. It was pre-dawn and dark. The front end of the wrecked car was against the side of the bridge. Plaintiff went around to the east side of the car where defendant Charlie Mullis was leaning over on the seat.

With regard to the Mullis wreck, it was established that Mullis had been traveling east and that just before he reached the bridge he dozed off to sleep and crashed into a steel guardrail on the southern shoulder of the roadway, lost control of his car, crossed the highway centerline, was struck by one Arnold coming from the opposite direction, and then struck the north side of the bridge. The Mullis wreck was 85 feet out onto the bridge. He sustained serious injury and was lying helpless in the wreckage crying for help. He testified that he seemed to be choking in his own blood and he could remember plaintiff Bailey standing by him holding up his head and wiping blood off his face.

While plaintiff Bailey was ministering to defendant Mullis, Charles Wood walked some 20 or 25 feet further out on the bridge to remove some debris from the roadway.

Defendant James Ross, who was traveling east, drove his gasoline tank truck, which was 45 feet long, onto the bridge and stopped it adjacent to the Mullis wreck. Ross testified that he could see a man close to the wreck who looked like he had a handkerchief wiping someone's face; that someone told him an ambulance was on the way 'so I started on off'; that he had moved away about 50 feet and was going six or seven miles per hour when he noticed the lights of a car coming over the crest or the hump in the bridge up ahead of him, and that the car began 'sliding' and it looked like it was going to hit the cab of the truck, but it did not, it hit or bumped the side of his truck and he stopped when he felt the contact. The evidence shows that the car just mentioned was a Mercury automobile traveling west and that it collided with the Mullis wreck. The Mercury was driven by defendant Dallas Rogers and contained three passengers.

Also traveling west a distance behind the Rogers' Mercury was a Rentz Bus Lines passenger bus driven by defendant Gerald NeSmith. There were a number of passengers on the bus. The evidence is that the bus made contact with the Mercury.

Plaintiff Bailey, who was previously mentioned was standing on the east side of the Mullis wreck ministering to Mullis, was injured either by the Mercury or the bus or both. He was found lying between the front of the Mercury and the Mullis wreck.

Plaintiff Bailey named Mullis (who first wrecked on the bridge); Ross (driver of the tank truck) and his principal; Rogers (driver of the Mercury); and NeSmith (driver of the bus) and his principals as joint defendants in his complaint, alleging that the proximate cause of his injuries was the joint and concurring negligence of all the defendants.

The following negligence was alleged: (Mullis) 'Defendant Charles Mullis was negligent in creating a situation from which he knew or, in the exercise of ordinary care should have known, that it would be necessary for him to be rescued; and he was guilty of the following acts of negligence in creating said situation: (a) In going to sleep while driving his vehicle on the highway. (b) In crashing his vehicle into the northerly side of the bridge and thereby blocking the lane of the highway designated for westbound traffic.' (Ross) 'Defendant James Carl Ross, Jr., whose negligence is imputable to defendant Stone's Independent Oil Distributors, Inc., by virtue of facts aforesaid, was negligent in the following several particulars: (a) In stopping his tanker truck on the bridge adjacent to or in the immediate vicinity of the wreckage of the Mullis vehicle so as to effect a blockage of the highway. (b) In placing his vehicle in such a position on the bridge that it could and did deflect into plaintiff an oncoming vehicle whose driver was endeavoring to avoid the Mullis wreckage. (C) In failing to dim his lights on the approach of the NeSmith vehicle so as to avoid blinding defendant NeSmith and thus interfering with and obstructing his vision of perils ahead, all in violation of the laws of Georgia which constitutes negligence per se. * * *' (Rogers) 'Defendant Dallas Thomas Rogers was negligent in the following several particulars: (a) In failing to keep a proper lookout in the direction in which he was traveling. (b) In failing to stop his vehicle before becoming involved in the collision hereinabove described. * * *' (NeSmith) 'Defendant Gerald W. NeSmith, whose negligence is imputable to defendant Rentz Bus Lines by virtue of facts aforesaid, was negligent in the following several particulars: (a) In failing to keep a proper lookout in the direction in which he was traveling. (b) In failing to stop his vehicle when he became blinded by the headlights of the tanker truck and knew that he had an imperfect view of the roadway ahead. (c) In failing to stop his bus before colliding with the Mercury automobile and thereby injuring plaintiff. * * *'

Many witnesses testified at the trial, including the defendant drivers of the four vehicles; three who were passengers in the Rogers Mercury; several who were passengers in the bus; and Charles Wood who was with plaintiff Bailey and had walked out to the Mullis wreck with him. The evidence was conflicting as to the time intervals between the several events. It was conflicting as to where Ross first stopped his tank truck in relation to the Mullis wreck; as to whether the rear end of the tank truck had cleared the Mullis wreck at the time the Rogers Mercury came on the scene; and as to whether Ross had his headlights on 'high beam,' causing a blinding effect, or whether he had dimmed his headlights to the oncoming vehicles.

The evidence conflicts as to when Rogers, driving the Mercury, first could see and did see the Mullis wreck ahead; as to how fast he was going; as to when he first applied his brakes; as to whether he could have stopped without contact; whether he ever struck the tank truck; and as to whether his involvement with the Mullis wreck involved any contact with or caused any injury to plaintiff Bailey.

The evidence conflicts as to when NeSmith, driving the bus, first could have seen or did see the condition ahead; as to whether his vision became impaired by some bright lights ahead, and whether he reacted by slowing up the bus or continuing on; as to how fast the bus was traveling and the distance it was behind the Mercury; as to whether NeSmith could have stopped before hitting the Mercury; and as to whether the contact between the bus and the Mercury was only a 'slight tap,' imparting little or no movement to the Mercury, or whether it was an impact with such force that it caused some or all of the injuries which plaintiff Bailey suffered.

The jury returned a verdict for the plaintiff against all the defendants jointly. All the defendants, except Rogers, have appealed. Held:

1. The appellants in Appeal No. 45007 (Stone's Independent Oil Dist., Inc. and James C. Ross, Jr.) and the appellants in Appeal No. 45009 (G. P. Register and Burtz V. Register, partners, d/b/a Rentz Bus Lines, and Gerald NeSmith) contended in motions for directed verdict made at various stages of the trial and by motions for judgment n.o.v. that the Houston Superior Court was without jurisdiction over them. The only resident defendant in the case was Mullis.

In support of this position these appellants first argue that the evidence simply does not show that Mullis was negligent in any respect and that without a resident defendant who is liable there is no basis for entry of a judgment against nonresident defendants, notwithstanding the latters' negligence and liability in the matter. Second, it is argued that even if Mullis had been negligent, his negligence was complete and static and too remote to constitute a concurring proximate cause of the injuries, which...