110 F.2d 596 | 5th Cir. | 1940
Lead Opinion
On August 21, 1938, William Daniel Loudermilk and Harold Starling Louder-milk were killed when the automobile in which they were riding collided with a bus of the Atlantic Greyhound Corporation. Harold Loudermilk owned the automobile and was operating it at the time of the accident; William Daniel Loudermilk was riding as a guest. Mrs. William Daniel Loudermilk sued Atlantic Greyhound Corporation to recover damages for the death of her husband. Mrs. J. C. Loudermilk sued to recover damages for the death of her son, Harold Loudermilk. The two cases were tried together. The jury returned a verdict of $1,500 for Mrs. J. C. Loudermilk, the mother, and a verdict of $5,000 for Mrs. William Daniel Louder-milk, the wife. Judgments were entered on the verdicts and Atlantic Greyhound Corporation appealed.
The appeals were submitted together with a stipulation that the evidence in the record in No. 9308 be used for determination of both cases. We dispose of the appeals in one opinion.
The only question for decision is whether or not the evidence was sufficient to support a finding by the jury that the Atlantic Greyhound Corporation was negligent in such sort as proximately caused the death of the two Loudermilk boys. The appellant contends that the evidence was insufficient to support the verdict and that the court erred in refusing to grant its motions for a directed verdict and a new trial.
The record shows that the Loudermilk automobile and the Greyhound bus collided at a point near a filling station on State Public Highway No. 13 in Habersham County, Georgia. The bus was traveling northeasterly toward Toccoa, Georgia, and the automobile was going southwesterly toward Cornelia, Georgia. The filling station was located on the east side of the road south of and seventy-five feet from the intersection of State Public Highway No. 13 and a side road leading to a Resettlement Administration Building and out to a place called Ayersville, the road being known as the Ayersville Road.
We are impressed with the seemingly studied effort of all the witnesses to give, without interest or bias, clear and lucid details of just how the accident occurred. B. G. Davidson, who perhaps had the best opportunity to see the accident, testified that he was standing between the filling station pumps when the accident occurred; that he saw the Chevrolet automobile pulling in; that it was traveling about twenty miles per hour as it approached the filling station; that when it came within fifteen or twenty feet of the Ayersville Road it began to cut sharply across the center of. the highway and that “it was a second after he began to cut over and I heard the bus and looked and saw it right on top of me.” He estimated the speed of the bus to be between fifty and sixty miles per hour. He did not hear the bus give a signal and concluded that the accident was unavoidable under the circumstances. He further testified: “Yes, by ‘the circumstances’ I mean the speed the bus driver was coming through there. If he had been going at a speed of say forty-five miles an hour, or forty miles an hour, I believe he could have gone to the left. He could have passed on the left, that is, if there had not been any cars behind the Loudermilk car. As to whether I did not see any cars behind it, I did not notice any.”
Roy Loudermilk testified that the Loudermilk car passed him on the road and that he was following about 175 or 200 yards behind it, and that he saw Harold signal for a turn. “It looked to me like they were pretty well across the center of the highway when they were hit. * * * I didn’t see the bus until just before it hit the automobile.” Mrs. Dovie Loudermilk who was riding with Roy Loudermilk testified to the same effect.
The evidence is in conflict as to whether or not the bus driver sounded the horn or gave any signal as he came around the curve. The bus did not slow down for the Ayersville Road intersection. See Georgia Code 1933, Sec. 68-303 (i).
The bus driver testified that he was on time and that the bus was running at a speed of approximately forty miles per hour, the statutory maximum speed at which busses may run in order to maintain their schedules. Georgia Laws 1931, No. 243, Sec. 32, p. 212, Georgia Code 1933, Sec. 68-634. Other witnessés testified that the bus was running from forty to seventy-five miles per hour. Certain it is that the evidence raised a jury question.
The doctrine of comparative negligence prevails in Georgia, and it was open to the jury to find that while the operator of the automobile may have been negligent in and about crossing the highway, the defendant was also negligently operating the bus at an excessive and illegal rate of speed which proximately caused injury and death. Moreover, it was further open to the jury to find from the evidence that if the bus had slowed down for the curve and Ayersville Road intersection the accident would not have occurred.
The Georgia statute provides that “An operator meeting another vehicle coming from the opposite direction on the same highway shall turn to the right of the center on the highway, so as to pass without interference.” Georgia Code 1933, Sec. 68-303 (c). The defendant, however, may not take refuge behind this statute since the evidence is in sharp conflict as to the facts. The jury might conclude that at the time of the accident the bus-was moving at a speed of sixty miles per hour, eighty-eight feet per second, or in five seconds the bus would move 440 feet. The jury might further find that when Harold Loudermilk left his lane of safety and attempted to cross the highway the danger from the oncoming bus was not yet apparent. It was the duty of the jury, if they found both Harold Loudermilk and the bus
The negligence of the driver of the automobile was not imputable to the guest, and the verdict for $5000.00 in favor of his wife is supported by the evidence. Woods v. Gettelfinger and Spalding Etc., 5 Cir., decided December 26, 1939, 108 F.2d 549; Southern Ry. v. Lawrence, 5 Cir., 67 F.2d 426.
The judgment in each case is affirmed.
Dissenting Opinion
(dissenting in part).
I agree that the jury could find that the Greyhound Bus was exceeding, the speed limit fixed by statute, and that the excess speed contributed to the accident or its fatality, and that the negligence of the driver of the automobile is not attributable to his guest, so that the verdict in favor of the wife of the guest is sustainable. I think the recovery by the mother of the driver of the automobile is not sustainable because she cannot recover unless he could if he had not died, and he could not recover by reason of a statute of Georgia which is applicable to all negligence cases, first found in the Code of 1863, now Code Section 105-603: “If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover. In other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained.” The last sentence of the section refers to the Georgia doctrine of comparative negligence (in the earlier decisions called contributory negligence) by which when both parties are at fault the plaintiff may recover, but the recovery is to be diminished in proportion to the default attributable to him. But even then the plaintiff’s fault must be less than the defendant’s, because if they are equally to blame neither can recover from the other. This doctrine of comparative negligence was apparently applied by the jury here in making a moderate verdict as respects the driver. But the law of comparative negligence does not, I think, apply here, because the first sentence of the quoted section applies and excludes all recovery. I think no other conclusion can reasonably be reached under the evidence than that the driver by the exercise of ordinary care could have escaped the consequences of the speed negligence of the bus.
It has often been held by the Supreme Court’ of Georgia that the statute cutting off recovery and excluding any comparison of negligence applies when the defendant’s negligence is in existence and is open and apparent, and its consequences can be avoided by ordinary care on the plaintiff’s part. While comparing negligences is always the work of the jury, the question of failure to exercise ordinary care in escaping consequences of another’s negligence, (usually a jury question), is in plain cases a matter of law, and because of it involuntary non-suits and directed verdicts _ are often granted, verdicts are set aside, and even demurrers sustained. A recovery is simply unlawful. Ordinary care or diligence is itself defined by statute: “In general, ordinary diligence is that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances.” Code, Sect. 105-201.
The decisions are multitudinous. Those of the Supreme Court alone are of final authority. A few will be cited. The earliest applying this statute is Macon & Western R. R. Co. v. Johnson, 38 Ga. 409, where a wife sued for the negligent killing of her husband while a train passenger. The court held the statute valid and applicable to railroad cases and all others of personal injury by negligence; and that by force of it, notwithstanding the general rule of apportionment of damages according to 'fault, there can be no recovery at all where this statute applies. The jury’s verdict was set aside, because the deceased had warning that the train which killed him was expected. In Western & Atlantic R. R. v. Bloomingdale, 74 Ga. 604, the previous cases are reviewed, and where a man undertook to walk between railroad tracks when he could have gone down a neighboring street it was held: “The facts of this case show that the injury to the plaintiff was the result of his own negligence, and could have been
There can be no doubt that when the driver of an automobile on a main paved' highway turns left across the path of oncoming vehicles he incurs the risk of a. crash, and especially so where a curve in-the road ahead prevents his seeing far. Though the then Georgia statute allowed no. vehicle to run over forty miles per hour iL
