Eidson v. Felder

22 S.E.2d 523 | Ga. Ct. App. | 1942

1. Code § 68-303 (f) which provides: "An operator intending to start, to stop, or to turn his vehicle to the left or right shall extend the hand and arm horizontally from and beyond the left side of the vehicle," is not null and void because it is too indefinite and vague to establish a rule of conduct in that it does not provide at what distance from the turn the left hand and arm shall be extended horizontally and what length of time they are to be extended.

2. "It is a well-settled principle of law that where two concurrent causes operate directly in bringing about an injury, there can be a recovery against either one or both of the responsible parties. The mere fact that the injury would not have been sustained had only one of the acts of negligence occurred will not of itself operate to define and limit the other act as constituting the proximate cause, for if both acts of negligence contributed directly and concurrently in bringing about the injury, they together will constitute the proximate cause."

DECIDED OCTOBER 20, 1942. Mrs. I. D. Felder sued Milton Eidson, Sam Daniel Jr., and S. G. Maddox for damages resulting from the joint and concurrent homicide of her husband. The allegations of the petition show that the deceased was a guest of S. G. Maddox, who was driving in an automobile owned, controlled, and driven by Maddox. While proceeding in a northerly direction on Route 3, 600 feet ahead of them there came into view a school bus being driven by Daniel, who was the agent of Eidson, the owner of the bus. The bus was then 30 or 40 feet south of the intersection of the east and west highway. At that time the Maddox car was on the east side of the highway on which the car was proceeding. The bus was on the east side, driving "very slowly." At the time the bus reached the opposite intersecting road the Maddox car had reached a point 200 feet to the rear of the bus, and had driven to the left (west) side of the highway. Maddox gave no signal or warning that he expected to pass the bus. He was still driving 65 miles per hour and had not reduced his speed on approaching the intersection. When the Maddox car had reached a point approximately 120 feet to the rear of the bus, Daniel had driven the bus across the highway on which they were driving, had blocked the left side thereof, and had not cleared the right side. Maddox then turned his car sharply to the right and struck the left side of the end of the bus, wrecking the automobile and inflicting injuries which resulted in the death of the deceased the following day.

Gross negligence was claimed as to Maddox. The negligence of Daniel was imputed to his master, Eidson. The negligence of Daniel was alleged to be: (a) In failing to extend his hand and arm from and beyond the left side of the bus in order to indicate to approaching traffic from the rear that he intended to make a left turn across the highway on which he was traveling, and in making the left turn without so signaling. (b) The failure of Daniel to ascertain, before making the left turn, that the highway to his left was clear of approaching traffic so that the left turn could be safely made, and thereby creating a situation of danger to approaching traffic. (c) In blocking the highway without noticing the close approach of the Maddox car and the speed at which the same was traveling, thus creating a situation of danger both to himself and to approaching traffic. The specified acts of negligence as to Maddox are: (a) The operation of his car at 65 miles per hour. (b) The failure to signal his approach to the bus. (c) The failure to reduce the speed of his automobile. (d) The failure, upon observing that Daniel was making a left turn across the highway, to bring his automobile under control to avoid striking the bus. (e) The driving of his car into the rear end of the bus at such a high rate of speed and with force, subjecting the deceased to a violent blow which resulted in his death. (f) Because he attempted to pass the school bus at a point on the highway where it was intersected by another public road, while driving at a speed of 65 miles per hour, and failed to give any warning that he was about to pass the bus at such intersection.

Eidson and Daniel filed general and special demurrers. Ground 3 is to the effect that since the suit was brought in Early County and the petition did not charge gross negligence as to Maddox, the resident of Early County, and since Eidson and Daniel were not residents of Early County, the petition could not be maintained as to Eidson and Daniel. The plaintiff obtained an allowance of an amendment which admittedly cured this defect. Ground 5 of the demurrer attacks Code § 68-303 (f) which provides: "An operator intending to start, to stop, or to turn his vehicle to the left or right shall extend the hand and arm horizontally from and beyond the left side of the vehicle." It is argued that this provision is null and void because it is too indefinite and vague to establish a rule of conduct in that it is not provided at what distance from the intended turn the left arm shall be extended horizontally. All the other grounds of the demurrers are general in their nature to the effect that the petition sets forth no cause of action against Eidson and Daniel or either of them. 1. We will first deal with the question raised in ground 5 of the demurrer, to the effect that Code § 68-303 (f) is too indefinite and vague to establish a lawful rule of conduct in the operation of a motor vehicle on the public highway. Counsel for neither party cite us to any decisions. We have been unable to find any Georgia decisions directly in point. It is our opinion that the statute is not subject to the attack made. What distance from the point from which the turn is expected to be made the arm should be extended, and as to what length of time it is to be kept extended, in our opinion depends upon a number of conditions. This may include the condition of the highway, the amount of traffic, the visibility, the topography, the speed of traffic, and the like. It would be almost impossible for the legislature to prescribe uniform rules covering all the highways of this State, the exact number of feet and the period of time the hand and arm should be extended with reference to the point at which the party intends to start or stop or turn his vehicle to the left or right. We think in so far as civil actions are concerned the legislature very wisely did not attempt to do so. The rule has to have a reasonable application. As to whether or not in any particular case a party violates the spirit, intention, or letter of the act, is a question which may be well left to the jury to determine, under all the facts, circumstances and conditions attendant upon the transaction under investigation. The court did not err in overruling this ground of the demurrer.

2. It is contended in the other ground of the demurrer that the allegations of the petition show: (a) That the negligence of Maddox was the sole preponderant proximate cause of the injury, and (b) that the failure of the deceased to exercise ordinary care for his own safety in failing to use ordinary care for his own protection was the proximate cause of his injury and resulting death. Under the allegations of this petition it is proper for this court to refer the issues to a jury to determine as to what negligence and whose negligence the injury was attributable, under proper instructions of the court.

There have been many elaborate decisions written on the question involved in this case. We think a very clear ruling on the question will be found in Georgia Railway Power Co. v.Ryan, 24 Ga. App. 288 (100 S.E. 713), as follows: "No general yet precise and inflexible rule can be laid down with reference to the highly involved and much discussed subject as to what constitutes the proximate cause of an injury. Consequently each case must depend for solution upon its own particular facts; but it is a well-settled principle of law that where two concurrent causes operate directly in bringing about an injury, there can be a recovery against either one or both of the responsible parties. The mere fact that the injury would not have been sustained had only one of the facts of negligence occurred will not of itself operate to define and limit the other act as constituting the proximate cause, for if both acts of negligence contributed directly and concurrently in bringing about the injury, they together will constitute the proximate cause. Barrett v.Savannah, 9 Ga. App. 642 (72 S.E. 49); Bonner v. StandardOil Co., 22 Ga. App. 532 (96 S.E. 573), and cases cited. The determination of questions as to negligence lies peculiarly within the province of the jury, and in the exercise of this function the question as to what constitutes the proximate cause of the injury complained of may be directly involved as one of the essential elements and disputed issues in the ascertainment of what negligence, as well as whose negligence, the injury is properly attributable to. White v. Seaboard Air-Line Ry.,14 Ga. App. 139 (80 S.E. 667). It was not error, therefore, for the judge to overrule the railway company's demurrer to the petition, since it was properly a question of fact, for the jury to determine from the evidence, whether the defendants were guilty of negligence in any of the particulars charged, and, if so, whether the concurrent acts of negligence of both wrong-doers, or the separate acts of either of them, constituted the proximate cause of the injury." See L. N. Railway Co. v.Stafford, 146 Ga. 206 (91 S.E. 29); Letton v. Kitchen,166 Ga. 121 (142 S.E. 658); Western Union Telegraph Co. v.Spencer, 24 Ga. App. 471 (101 S.E. 198); Larkin v.Andrews, 27 Ga. App. 685 (109 S.E. 518); Rome Railway Light Co. v. King, 30 Ga. App. 231 (2) (117 S.E. 464);Smith v. Tokio Marine Insurance Co., 31 Ga. App. 631 (121 S.E. 846); Reed v. Southern Railway Co., 37 Ga. App. 550 (4) (140 S.E. 921); Central of Georgia Railway Co. v. Jones,43 Ga. App. 507 (159 S.E. 613); Mann v. Central of Ga.Railway Co., 43 Ga. App. 708 (160 S.E. 131); McGinnis v.Shaw, 46 Ga. App. 248 (167 S.E. 533); Central of Ga.Railway Co. v. Leonard, 49 Ga. App. 689 (176 S.E. 137); S.C. Jones Co. Inc. v. Yawn, 54 Ga. App. 826 (188 S.E. 603);Folds v. Auto Mutual Indemnity Co., 55 Ga. App. 198 (189 S.E. 711); Pollard v. Horne, 58 Ga. App. 799 (200 S.E. 170);Collier v. Pollard, 60 Ga. App. 105 (2 S.E.2d 821).

The judge did not err in overruling the demurrers.

Judgment affirmed. Broyles, C. J., and MacIntyre, J., concur.