Tyson v. Shoemaker
| Decision Date | 22 November 1950 |
| Docket Number | No. 33079,No. 2,33079,2 |
| Parties | TYSON v. SHOEMAKER |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. Under the statute, Code, § 68-303 (g, i), 'An operator of a vehicle shall have the right of way over the operator of another vehicle who is approaching from the left in an intersecting highway,' but before exercising this right must reduce his speed in approaching the intersection.
(a) This rule is applicable within a municipality.
(b) A stop sign which requires the operator of an automobile, having the statutory right of way at an intersection within a municipality, to come to a complete stop must be one erected and maintained by proper legal authority, and in such a case the automobile after so stopping has the right of way, in proceeding into the intersection, as against a vehicle coming from the left.
(c) A municipal ordinance providing for a stop sign and requiring the operator of a vehicle to come to a complete and at an intersection must be pleaded and proved where relied upon in a given case.
(d) A failure to yield the right of way to one entitled to it is negligence per se.
(e) Where it was not pleaded and proved that the stop sign here involved was erected and maintained in pursuance of a valid municipal ordinance, the jury was authorized to find from the evidence that the defendant's truck driver failed to yield the right of way to the plaintiff, who was entitled to exercise it at the intersection within the municipality after having reduced his speed in approaching it, and that this negligence was the proximate cause of the plaintiff's injury and damage.
(2) The fourth special ground of the motion for new trial is not complete within itself and can not be considered. Ground 7 was expressly abandoned, and the other grounds are without merit for reasons stated in the opinion, infra.
(3) The court did not err in disallowing the two amendments of the defendant.
J. S. Shoemaker filed in the Superior Court of Grady County, Georgia, a petition against W. M. Tyson, trading as W. M. Tyson Lumber Company, alleging substantially as follows: On or about February 3, 1947, a long truck owned by the defendant and heavily loaded with logs and operated by the defendant's agent, whose name the plaintiff is unable to give, and while the said agent was in the prosecution of the defendant's business and acting within the scope of his employment, ran into the plaintiff, who was at the time traveling in an automobile owned by him, at the intersection of North Broad Street and State Highway 38 at what is known as Triangle Acres in the northern part of Cairo, Georgia, at 3 o'clock p. m. The defendant's truck was traveling east and the plaintiff was traveling north and was entering the said intersection when he saw the said truck approaching the intersection at a high rate of speed of 40 to 50 miles an hour, which was a dangerous speed for the said intersection. The intersection is where the Thomasville-Bainbridge highway 38 crosses North Broad Street and the Cairo-Pelham highway. The traffic at this point is congested and the intersection or crossing is dangerous, and a speed in excess of 15 miles an hour for a heavily loaded log truck such as was being operated by the defendant at the time is unsafe and negligent. The defendant's driver saw, or by the use of ordinary care could have seen, the plaintiff at all times after the defendant's truck was within 300 to 400 feet of the said intersection. The plaintiff had stopped for the intersection and was barely moving at the time and was on his side of the street when the defendant's said agent cut the truck sharply to the right, passing in front of the plaintiff's car, when the load of logs on the truck began spilling into the highway, some of the logs being driven into the plaintiff's automobile and others falling on top of the car, completely demolishing it and inflicting serious injuries on the plaintiff. The plaintiff was rendered unconscious, was forced to remain in bed for three or four weeks, and was unable to attend to any business for two months. The said truck was heavily loaded, having thereon logs weighing ten tons or more, which made the truck unsafe for operation on the public highways, and the logs were not securely tied or fastened on the truck with chains to prevent them from falling off of the truck.
The petition detailed wherein the plaintiff was permanently injured and further alleged the following: Before his injury the plaintiff was an ablebodied man, lived an active life in operating a sawmill, and earned $10,000 per year. As a result of his said injuries his earning capacity has been reduced by 50 per cent. or more. By reason of his injuries the plaintiff has incurred expense for doctors, medical, hospital and nursing in the sum of $500, his automobile of the value of $1500 was completely demolished, he was unable to attend to business for two months and by reason thereof was damaged in the sum of $2000, all of which was the result of the said injuries, and the plaintiff has suffered and continues to suffer great bodily and mental pain and will continue to suffer for and during his life.
At the time of the accident hereinbefore referred to the plaintiff was traveling north and the defendant's truck was traveling east, and the defendant's driver negligently violated § 68-303(g) of the Code of Georgia by failing to yield the right of way at the said intersection to the plaintiff, who was at the time on the right of the defendant's truck and the said act of negligence was the proximate cause of the plaintiff's damages.
It was alleged that the defendant, through his agent and employee, was negligent in the following manner and that such negligence was the proximate cause of the injuries complained of: (a) in driving at an excessive rate of speed of between 40 and 50 miles per hour in violation of the city ordinance; (b) in failing to reduce speed in approaching the intersection; (c) in failing to reduce speed in approaching the intersection and permitting the plaintiff to pass through it in safety, the defendant's agent having an open and unobstructed view thereof for several hundred feet and being able to see the plaintiff approaching and entering the intersection; (d) in operating the truck on the highway when it was overloaded; (e) in operating the truck when it was heavily loaded with logs not securely fastened to prevent them from falling into the highway.
It was also alleged that the defendant was guilty of negligence proximately causing the petitioner's injuries and damages, as follows: (f) in not using two heavy chains around each end of the logs and around the body of the truck, securely bucked and fastened, and lot less than 3/8 of an inch in size, the defendant actually hauling the load of logs with only one small chain around the logs, around the middle of the load, the the chain being badly worn, the exact size of which the plaintiff, for want of information, cannot give, but shows that it was not more than one-third the size of the chains that should have been used, by reason of which negligence the load of logs was unsafe and a menace to those traveling the highway: (g) in not securely fastening with chains the upright standards on either side of the truck, the same being wholly insufficient to hold the logs in place, by reason of which negligence the standards of the left side of the truck came out, leaving no support for the logs on the truck, said acts being negligent on the part of the defendant and rendering the load of logs unsafe and a menace to those using the said highway.
By reason of the allegations of the petition the plaintiff is entitled to recover of the defendant for his bodily injuries, including reduced earning capacity, mental pain and suffering, and permanent injuries which include expenses incurred by him for doctors, medical, hospital and nursing and loss of time from his business, the sum of $10,000, and he is entitled to recover the further sum of $1500 for his automobile which was completely demolished, the market value being $1500, the total damages claimed being $11,500.
The defendant filed an answer denying the material allegations of the petition and setting up his plea as follows: The injuries and damage of the plaintiff were proximately caused by his own negligence. The truck driver was in the exercise of ordinary care at the time and place in question, operating the truck at approximately 15 miles an hour on highway 38 when without notice or warning, as the truck approached within a few feet of the point or place where North Broad Street flows into the said highway, the plaintiff suddenly, and continuing an unabated speed of approximately 25 miles an hour, drove his automobile across the center line of the highway and athwart the north travel lane down which the truck was traveling, rendering it impossible for the driver of the truck to avoid striking the automobile except for one possible movement, to swerve the truck very sharply and radically to the right and attempt to go down Broad Street. In the emergency thus created by the plaintiff's gross negligence the truck driver undertook to so maneuver the truck and would have completely avoided the automobile except that the stress and strain brought about by such radical turn caused a chain holding the logs firmly in place to break or snap, whereupon centrifugal force dumped the logs over, upon and against the plaintiff's automobile, causing damage to it and injuries to the plaintiff, all of which was the proximate result of the plaintiff's failure to exercise ordinary care at the time and place. As required by Georgia law, the State Department of Public Safety, in conjunction with the State Highway Department, had designated State road 38 as a through highway, and pursuant thereto the State highway maintenance department had erected a sign on the...
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...383; Strong v. Palmour, 113 Ga.App. 750(1), 149 S.E.2d 745; and Tyson v. Shoemaker, 208 Ga. 28, 65 S.E.2d 163, reversing Tyson v. Shoemaker, 83 Ga.App. 33, 62 S.E.2d 586; and relative to the duty of a motorist to approach an intersection attentively, Richards & Associates v. Studstill, 92 G......
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