Malcom v. MalcolmMalcom v. Malcolm
- Reporters:
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- Before:
- Jordan
1. “Quеstions of negligence, of contributory negligence, of cause and proximate cause, and of whose negligence or of what negligence constitutes the proximate cause of an injury are, except in plain, palpable and indisputable cases, solely for the jury.”
Long Constr. Co. v. Ryals,
102 Ga. App. 66 (1) (115 SE2d 726). It was not the purpose of the summary judgment law (Ga. L. 1959, p. 234 et seq.;
Code Ann. Ch.
110-12) to change these general rules with reference to sub
•Applying these principles to the record in this case, it is our opinion that the trial court erred in granting the plaintiff’s motion for summary judgment. It cannot be said as a matter of law that the defendant was guilty of negligence in operating his automobile at a speed of 20 m.p.h. under the conditions present, or in driving at a distance of оnly 25 feet to the rear of the plaintiff’s automobile. Neither Code Ann. § 68-1641, prohibiting one motor vehicle from following another “more closely than is reasonable and prudent, having due regard for the speed of such vеhicles and the traffic upon and the condition of the highway,” nor Code Ann. § 68-1626, providing that “In every event speed shall be so controlled as may be necessaiy to avoid colliding with any person, vehicle, or other сonveyance on or entering the highway in compliance with legal requirements and the duty of all persons to use due care” defines precisely what constitutes following too closely or driving at an exсessive speed. These statutes merely furnish a general rule of conduct (Teague v. Keith, 214 Ga. 853, 108 SE2d 489); and it is for the jury to determine in the light of all the attendant circumstances of the case, whether these statutory provisions have beеn violated. Flanigan v. Reville, 107 Ga. App. 382 (130 SE2d 258); Hargrove v. Tanner, 98 Ga. App. 16 (104 SE2d 665); Hay v. Carter, 94 Ga. App. 382 (94 SE2d 755).
Nor can it be said as a matter of law that the defendant was negligent in not keeping a proper lookout ahead, in failing to keep his vehicle under control, and in failing to apply his brakes so as to stop and avoid striking the plaintiff’s automo
As pointed out in Flanigan v. Reville, 107 Ga. App. 382, supra, neither Code Ann. § 68-1641, nor Code Ann. § 68-1626, “nor any other provision of lаw of which we are aware, places an absolute duty on any driver to avoid a collision. All the circumstances and conditions at the time and place including the conduct of other drivers must be taken into account.” The court thus held in that case that it was not abstractly incorrect to charge the jury that: “A leading vehicle has no absolute legal position superior to that of one following.” In Hay v. Carter, 94 Ga. App. 382, 384, supra, this court quoted from Cardell v. Tennessee Electric Power Co., 79 F2d 934, 936, as follows: “All drivers of vehicles using the highways are held to the exercise of due care. A leading vehicle has no absolute legal position superiоr to that of one following. Each driver must exercise ordinary care in the situation in which he finds himself. The driver of the leading vehicle must exercise ordinary care not to stop, slow up, nor swerve from his course without adequate warning to the following vehicles of his intention so to do. The driver of the following vehicle, in his turn, must exercise ordinary care to avoid collision with vehicles, both in front and those behind him.” This court held in the Hay cаse, supra, that: “It follows that the mere fact that one vehicle is struck in its rear, while another is not struck, is not sufficient to fix liability on the driver of either vehicle.” And in the Hargrove case, supra, it was specifically pointed out that the issue of whether one of the parties was following too closely should be left to the jury.
Nor was the defendant precluded as a matter of law from
Among the other evidence in this case to be considered and resolved by the trior of fact, and not by the court, is the confliсting testimony of the plaintiff and the defendant with respect to the manner in which the plaintiff stopped his automobile. The plaintiff stated in his affidavit that “the stopping motion of the deponent was not made suddenly оr without warning, but by a gradual application of his brakes to bring his vehicle to a stop slowly from a speed in the neighborhood of 15 m.p.h.,” and that “the deponent’s tail-lights on his automobile were operating proрerly and he had signaled to the rear of his application of his brakes as he brought his vehicle to a stop.” The defendant on the other hand gave testimony which would authorize a finding that the plaintiff came to a sudden stop, that his tail-lights did not come on, and that he did not give a hand signal. While the fact that the plaintiff may have stopped suddenly and without warning in a line of traffic would not necessarily excuse the negligencе, if any, of the defendant, it would dearly be a circumstance for the jury to consider in determining
It follows therefore that the trial court erred in determining as a matter of law that the defendant was liable for the damages, if any, sustained by the plaintiff as a result of the collision, as this was an issue for the jury’s determination under the record before the court; and the judgment of the trial court granting the plaintiff’s motion for summary judgment must be reversed.
2. The erroneous grant of the motion for summary judgment as to the liability of the defendant necessarily rendered the subsequent trial on the issue of damages nugatory. However, we have examined the amended motion for new trial and find that one special ground requires consideration by the court at this time.
The plaintiff alleged in his petition that certain internal organs, particularly the heart, were bruised in the collision, that shortly after the collision he suffered chest рains and that as a direct and proximate result of the collision he has myocardial ischemia which is a permanent disability. At the trial, evidence was admitted that plaintiff had arteriosclerotic heart disеase before the collision and that persons with such disease who experience nervousness or anxiety suffer chest pain or angina pectoris. Evidence was also introduced by the plaintiff to show that the plaintiff suffered nervousness and anxiety as a result of the collision and that this affected his heart condition and produced chest pain. The medical evidence further showed, however, that nervоusness or anxiety stemming from
In view of this testimony the defendant attempted to show that between the date of the collision and the time when a worsening in his heart condition was noted, the plaintiff was involved in several lawsuits. Upon objection to this line of questioning, the defendant offered to prove that the plaintiff was the defendant in four lawsuits filed between the date of the collision and the time of trial; that one of the lawsuits charged the plaintiff with making false financial statements about financial transactions during July 1962, a period of time between the plaintiff’s electrocardiogram on October 17, 1961, and the electrocardiogram in December 1962, which showed that the plaintiff’s heart сondition had gotten worse during this period; that the plaintiff had filed a petition in bankruptcy on October 1, 1964; that the circumstances surrounding the plaintiff’s business transactions and his bankruptcy petition were sources of tеnsion and anxiety completely disassociated with the collision of May 31, 1961, which could, under the testimony admitted by the court, account for the plaintiff’s heart‘condition and complaints.
In view of the medical testimony as to the nature and cause of the plaintiff’s aggravated heart condition, it is our opinion that the defendant should have been allowed to pursue this line of questioning and put these matters before the jury for their consideration. However, as suggested in the brief of counsel for the plaintiff, the defendant “should have employed the device of cross examination in connection with the medical testimony offered or perhaps even should have offered his own medical testimony,” in order to establish a more thorough medical background for the introduction and consideration of these factual circumstances. This the defendant will have an opportunity to do on the subsequent trial of this case.
Judgment reversed.
Felton, C. J., and Deen, J., concur.