Whitley Const. Co. v. Price, 34708

• Decision Date: 01 December 1953
• Docket Number: No. 34708,No. 2,34708,2
• Citation: 79 S.E.2d 416,89 Ga.App. 352
• Parties: WHITLEY CONST. CO. et al. v. PRICE
• Court: Georgia Court of Appeals

Page 416

79 S.E.2d 416

89 Ga.App. 352

WHITLEY CONST. CO. et al. v. PRICE.

No. 34708.

Court of Appeals of Georgia, Division No. 2.

Dec. 1, 1953.

Rehearing Denied Dec. 15, 1953.

Syllabus by the Court.

1. (a) Even though a designated school zone, outside the corporate limits of any municipality, wherein the speed for motor vehicles has been limited to 20 miles per hour, has not been created and marked by proper authority, and even though a person injured therein does not come within the class for whose protection the zone was created and marked--in an action for negligence, allegations in the petition describing the zone and the signs marking it and stating that the plaintiff was within such zone at the time of her injury are relevant and material to the jury's determination of the question of whether the defendants were, under the circumstances described, guilty of simple negligence (as distinguished from statutory negligence) in failing to heed the signs and observe the restrictive speed limit marked thereon.

(b) Where, in an action for negligence, the plaintiff charges the defendant with negligence in exceeding the speed limit established in a designated school zone, and the defendant, by special demurrer, demands to know from the plaintiff by whom and what authority the school zone was created and designated, he is entitled to such information in order that he may properly prepare his defense; that is, he is entitled to know whether the plaintiff intends to establish her case of negligence by proof of statutory negligence or by proof of simple negligence.

(c) Where school zones have been established and the speed of motor vehicles restricted therein by the Department of Public Safety, all persons using the highway within a designated school zone come within the class for whose protection the zone was created and the speed restricted, and such zone and speed limit is not solely for the protection of school children and persons going to or returning from the school.

2, 3, 4, 5, 7, 8. The trial court did not err in overruling the special demurrers treated in these divisions of the opinion, for the reasons stated therein.

6. Under the alleged factual situation of this case, there was no duty upon the defendant to sound the horn of the truck, and the trial court erred in its failure to strike from the petition the charge alleged therein that the defendants were guilty of negligence per se in failing to sound the horn.

9. As the case must be remanded for a new trial, the other assignments of error contained in the motion for a new trial are not considered here, as they are not likely to recur on another trial.

Mrs. W. P. Price brought an action for damages against Whitley Construction Company, a corporation, and Merelee Mack, its servant and employee, to recover for enumerated personal injuries. The material allegations of the petition as finally amended are substantially as follows: (4) On or about May 9, 1951, at about 2:40 p. m., the plaintiff was a fare-paying passenger on a trackless trolley operated by Atlanta Transit Company. (5) The trackless trolley upon which the plaintiff was riding was headed in a westerly direction on North Decatur Road in DeKalb County, Georgia, and had come to a full and complete stop at the usual and properly designated bus stop, at a point near to but west of the intersection of Haygood Drive and North Decatur Road, for the purpose of taking on passengers, including school children who had just completed their school attendance for that particular day and were en route to their respective homes. (6) After the trackless trolley had come to a full and complete stop in the usual, proper, and ordinary manner, at the designated stop on the extreme northern edge of the roadway, a 1946 model motor truck, with a powerdriven concrete mixer mounted thereon, which was owned by the defendant corporation and was being driven and operated by the defendant Mack, as the servant, agent, and employee of the defendant corporation, proceeding in a westerly direction, with a load of concrete mix, approached the rear of the trackless trolley at a high, reckless, and unlawful rate of speed in excess of 40 miles per hour; and, without reducing its speed, crashed into the rear of the trackless trolley and threw the trackless trolley forward in a westerly direction a distance of 33 feet, severely and permanently injuring and damaging the plaintiff. (7) After striking the rear of the trackless trolley, the defendant corporation's truck, operated by the defendant Mack, skidded a distance of approximately 33 feet in a westerly direction. (8) North Decatur Road is a public highway, or thoroughfare, within DeKalb County running generally in an easterly and westerly direction, and is approximately 26 feet in width and is paved for that entire width. (9) There was no other vehicle or other object obstructing the defendant Mack's view as he approached the rear of the trolley; and the weather conditions then existing were such as to afford a clear view for a distance of two or more blocks. (10) At the time of the impact between the defendant corporation's truck and the trolley, the trolley was within a designated school zone and there were, in positions clearly visible to the defendant Mack and others using the highway, marked signs along the highway bearing the legend, 'Speed Limit 20 Miles Per Hour.' By amendment the following allegations were added to this paragraph of the petition: The school zone sign, which was erected on a telephone pole on the right-hand side of the highway for the direction the defendant corporation's truck was travelling, was located at the westerly side of the intersection of Westminster Way [and North Decatur Road?], some .4 of a mile from the point of collision, and the speed limit sign was erected on a telephone pole on the right of North Decatur Road, in the direction in which the defendant corporation's truck was travelling, at a point some .2 of a mile from the point of collision; and on both poles, below the signs, the entire width of each of the poles was painted yellow down to the ground to aid in attracting attention of drivers to such signs. (11) The trackless trolley had stopped at said time and place for the purpose of allowing school children to come aboard. (12) At all times mentioned herein the defendant Mack, as driver and operator of the truck, was the servant, agent, and employee of the defendant corporation, and was engaged in and about the business of the defendant corporation and was acting within the scope of his employment. (13) The defendant corporation's truck, in and of itself, weighed 6,340 pounds; in addition thereto the automatic concrete mixer installed thereon weighed approximately 5,000 pounds; and the load of concrete mix therein weighed an additional 5,400 pounds, totaling a gross combined weight in excess of 16,000 pounds. (14) The defendant Mack was driving the truck of the defedant corporation for the purpose of delivering the concrete mix to one or more of the defendant corporation's customers, the name or names of whom are unknown to the plaintiff; and notice is given the defendant corporation to produce its books and records disclosing the names and addresses of such customers. (15-19) At the time of the impact between the defendant corporation's truck and the trackless trolley, the plaintiff was thrown suddenly and violently against the back of her seat and the metal railing on the seat, causing her enumerated injuries, painful and permanent in nature, and from which she will suffer in the future. (20) Prior to receiving the injuries described, the plaintiff was in good health and performed all of the usual duties of a housewife in the home which she occupied with her husband; but, since receiving said injuries, she has been unable to perform any of the duties of a housewife and, as a result of said injuries, is totally and permanently incapacitated and disabled. (By amendment the following allegation was added to this paragraph: Her incapacity to perform her duties as a wife causes her great mental anguish.) (21) At the time she received the said injuries the plaintiff was 36 years of age and had a life expectancy of 36 years according to the Carlisle Mortality Table. (22) The defendant corporation, acting by and through the defendant Mack, its agent and employee, as well as the defendant Mack, was negligent in the following particulars:

(a) (The original allegations of this paragraph were stricken by amendment and the following allegations added by amendment: In driving and operating the motor truck at said time and place at a speed in excess of 35 miles per hour when the combined weight of the vehicle and its load was in excess of 16,000 pounds in violation of the laws of Georgia, Code Ann.Supp. § 68-301, and this was negligence per se.)

(b) In failing to operate the truck at said time and place in such manner as to have the same under control so as to avoid striking the rear of the stationary trackless trolley and avoid injuring the plaintiff.

(c) In striking the rear of the stationary trackless trolley with such force and violence as to knock it a distance of 33 feet.

(d) In operating the truck, which had a gross combined weight in excess of 16,000, pounds on a public highway in DeKalb County, Georgia, without due regard to the grade, traffic, and other conditions including a thickly populated residential section then and there existing, all in violation of Code Ann.Supp. § 68-301, which is negligence per se.

(e) In driving said motor vehicle at a speed in excess of 40 miles per hour through a designated school zone on a public highway in DeKalb County, Georgia.

(f) In failing to bring the motor truck to a full stop not less than five feet from the rear of the passenger-carrying trackless trolley headed in the same direction, which trolley had stopped for the purpose of taking on passengers, in violation of Code, §...