Venable v. Grage, 42777

• Court: Georgia Court of Appeals
• Writing for the Court: PER CURIAM; FELTON
• Citation: Venable v. Grage, 157 S.E.2d 519, 116 Ga.App. 340 (Ga. App. 1967)
• Decision Date: 05 September 1967
• Docket Number: No. 42777,No. 1,42777,1
• Parties: Charles VENABLE, Jr., et al. v. Walter A. GRAGE et al

Page 519

157 S.E.2d 519

116 Ga.App. 340

Charles VENABLE, Jr., et al. v. Walter A. GRAGE et al.

No. 42777.

Court of Appeals of Georgia, Division No. 1.

Sept. 5, 1967.

Rehearing Denied Sept. 21, 1967.

Certiorari Denied Nov. 7, 1967.

Syllabus by the Court

1. The ruling on appellants' first motion for summary judgment is not the law of the case as to their subsequent similar motions.

2. The evidence demanded the finding that the action of the defendants Venable was not the proximate cause or the concurrent

or contributing proximate cause of the collision between the appellee and the defendant Hager.

Walter A. Grage brought an action against James R. Hager, James E. Hager, Jimmy Wingo, Cled Wingo, Charles Venable and Charles Venable, Jr., jointly, for damages for personal injuries and damage to his automobile proximately caused by the alleged joint negligence of the defendants. The material allegations are substantially as follows: On or about December 17, 1965, at approximately 8:15 a.m., the plaintiff was driving his 1960 Volkswagen sedan automobile in a southerly direction on Keystone Drive near its 'T' shaped, or dead end, 'intersection' with Flat Shoals Road, both of which are two-way, two-laned, public thoroughfares. The plaintiff stopped at said 'intersection,' looked in both directions and slowly turned right into the northernmost lane of Flat Shoals Road proceeding in a westerly direction. Approximately 1000 feet west of said 'intersection,' Flat Shoals Road crests a hill. At said time and place, defendants James R. Hager, Jimmy Wingo and Charles Venable, Jr. were engaged in a 'drag race,' or speed contest, approaching said 'intersection' from a westerly direction on Flat Shoals Road. Defendant Hager's automobile was 'overtaking and passing' those of defendants Wingo and Venable 'at the crest of the said hill' 1000 feet west of said 'intersection.' The Hager automobile, a 1957 Chevrolet sedan, failed to return to its right, or southernmost, lane and collided with the plaintiff's automobile in the northernmost lane, forcing it backward approximately 25 feet and causing the alleged injuries and damage for which a recovery is sought. The alleged particulars of negligence of defendants Wingo and Venable are as follows: '(a) in racing and otherwise engaging in a contest of speed with other motor vehicles upon the public highways, roads and streets of this State in violation of Georgia Code Section 68-1626(e), the same constituting negligence as a matter of law; (6) in failing, as owner and driver of an overtaken vehicle, to give way to the right in favor of an overtaking vehicle in violation of Georgia Code Section 68-1635(b), the same constituting negligence as a matter of law; (c) by increasing, as owner and driver of an overtaken vehicle, the speed of such vehicle before being completely passed by the overtaking vehicle in violation of Georgia Code Section 68-1635(b), the same constituting negligence as a matter of law; (d) in failing to drive at an appropriate reduced speed when approaching an intersection in violation of Georgia Code Section 68-1626(c), the same constituting negligence as a matter of law.' The alleged negligence of the Hagers consists of violations of Code Ann. §§ 68-1626(a), -1626(c), -1626(e), -1637-(a), -1637(b)1, -1637(b)2, plus failure to maintain a proper lookout, have the automobile under control and give the plaintiff any warning.

The Venables filed a motion for a summary judgment, supported by an answer, demurrers, the affidavit of Venable, Jr., and the deposition of the plaintiff, and opposed by the depositions of defendants Jimmy Wingo, Venable, Jr. and James R. Hager. Affiant Venable, Jr. testified substantially as follows: That, at the time and place alleged, he was driving to school in an easterly direction on Flat Shoals Road at a speed of between 30 and 35 m.p.h.; that he did not engage in a 'drag race,' or contest of speed, with either of the other defendant drivers immediately prior to the collision; that, at the time of the collision, the Hager vehicle had already passed him and was several car lengths ahead of him; that, after the collision, he slowed down and stopped before he reached the point of impact to give assistance to the persons involved in the accident; that, as he was being passed by the Hager automobile, he was well on his right side of the road, driving not in excess of 35 m.p.h., and he neither failed to give way to the right in favor of the overtaking vehicle nor increased his speed.

Deponent Grage, the plaintiff, testified substantially as follows: That he is a 36-year-old dentist; that, as he approached Flat Shoals Road on Keystone Drive, he passed an automobile on his right with a man sitting in it, stopped at the intersection, which he thought had neither a stop nor a yield sign, nor a stop light, then looked to the left then to the right on Flat Shoals Road, seeing no approaching traffic in either direction; that he remembered nothing past that time until he awoke in the hospital the next day; that from the place where he had stopped he could see only 40-50 years to the right-to the vicinity just short of the bridge; that the distance one could see down Flat Shoals Road depended upon exactly where the automobile was stopped; that the weather was fair at the time of the collision; that there was a yellow line to the right of the center line and an intersection caution sign on Flat Shoals Road west of Keystone Drive; that he did not remember pulling out into the intersection and never saw any of the automobiles involved; that the only eyewitness he knew of was one Billy J. Minnix; that he did not know whether or not Hager failed to return to the right side of the road before coming within 100 feet of Keystone Drive or whether Venable, Jr. failed to give way to the right in favor of an overtaking vehicle, or increased his speed, or failed to drive at an appropriately reduced speed approaching the intersection; that he thought his physician had stated that he had sustained a mild concussion.

Deponent Wingo testified substantially as follows: That he is nineteen years old; that he knew both of the other defendant drivers; that he had observed the collision; that Hager, whom he hadn't recognized before the collision, had just overtaken Venable, whose automobile he had recognized, and the plaintiff made a right-hand turn from Keystone Drive, being about halfway on both streets; that the left front of the plaintiff's and Hager's vehicles collided, pushing the plaintiff's vehicle back to the left-hand curb of Keystone Drive, after which Hager, then Venable, stopped on the right-hand side of Flat Shoals Road; that past its intersection with Fayetteville Road, out of which he had just turned, Flat Shoals makes a slight, right-hand, blind curve, slopes gently downhill for 600-700 yards, crosses a bridge, then is level for several hundred yards to the Keystone Drive intersection; that he had just rounded the curve when he saw the vehicles and as 1,000 feet behind them at the time of the collision; that he estimated Venable's speed as 35 m.p.h. and Hager's as 40-45 m.p.h.; that, as he was rounding the curve, he saw Hager's vehicle overtaking Venable just...