Rushton v. Howle

53 S.E.2d 768 | Ga. Ct. App. | 1949

Where a policeman responds to a call to make a theft investigation on the premises of one who owns an automobile, and while he is on the premises in response to the call, and the owner's agent parks her automobile in her driveway and fails to securely put the brakes on, and the car begins to roll down the driveway incline, the policeman is not guilty of such contributory negligence, as a matter of law, in attempting to stop the automobile upon being called on to do so by the caller (owner of the automobile) to prevent injury to it, as will prevent him from recovering for injuries suffered in the attempt to stop the automobile.

DECIDED JUNE 1, 1949. A. M. Howle sued Miss Wight Rushton for damages, alleging: that he is a policeman of Fulton County, assigned to the detective department; that on July 26, 1948, while in the course of duty he responded to a call from Miss Rushton to investigate a suspected theft of jewelry from her home; that, while he was interviewing her, an agent and servant of Miss Rushton drove her automobile up the driveway and parked it in the driveway on an incline and left it unattended; that the driveway curves around from the front to the back of Miss Rushton's house; that the car was equipped with an automatic transmission, and the agent, in braking the car, failed to securely brake it by leaving it in gear or securely applying the emergency brake; that, after the agent left the car, it began to roll backwards down the driveway, and Miss Rushton admonished the plaintiff to stop it; that the plaintiff, standing about twenty feet from the car, saw it moving and ran from the porch around the front of the car to the driver's side and opened the door, grasped the steering wheel, and turned it to prevent it from colliding with some trees and tried to get inside to apply the brakes when his foot hit a stone, causing him to slip; that he fell to the ground and the front wheel of the car rolled over his leg and broke it. The court overruled the defendant's general demurrer and she excepted. The plaintiff in error, defendant below, contends that the rescue doctrine does not apply in Georgia unless the effort on the part of the injured person attempting the rescue has for its purpose the rescue of human life or the rescuer's own property. While we find no ruling in Georgia on the particular question, we can see little difference in principle between rescuing life or one's own property and in attempting to rescue someone else's property. It is stated by the editor in 166 A.L.R. 756: "It seems that, with reference to the problem of proximate causation, the chief difference between injuries sustained in an effort to rescue or aid persons involved in an automobile accident and those sustained in an effort to save property or limit damages, where the person whose negligence caused the accident is sought to be charged, is that the circumstances in the former case are likely to justify a greater risk and more desperate effort than in the latter." The only question in either case is, does the stimulus of the negligence under the circumstances call for the effort to rescue as a normal reaction to the situation, which cannot be said to be rash and reckless as a matter of law? "If the actor's negligent conduct threatens harm to another's person, land or chattels, the normal efforts of the other or a third person to avert the threatened harm is not a superseding cause of harm resulting from such efforts." 2 Restatement of the Law of Torts, 1193, § 445. For a statement of the principles governing the rescue attempt in such cases, see Blanchard v. ReliableTransfer Co., 71 Ga. App. 843 (32 S.E.2d 420). The plaintiff was rightfully upon the premises. The fact that the defendant through her agent endangered her own property does not alter the principle involved. The stimulus had the same effect regardless of whose property was involved. We think that the lower court was correct in overruling the general demurrer, and holding, as stated in its opinion: ". . the court cannot say as a matter of law that the plaintiff was guilty of such rash and imprudent conduct that would bar him from a recovery. Whether or not reasonable and prudent men would act in the same way, under such circumstances, is a question for the jury to determine." For cases where the rescue principle has been applied where the effort was to rescue the property of another, see Burnett v. Conner, 299 Mass. 604 (13 N.E.2d, 417); cases cited in Wilson v. Central of Georgia Ry. Co., 132 Ga. 215 (63 S.E. 1121); and annotation in 4 American English Ann. Cases 216.

The court did not err in overruling the general demurrer.

Judgment affirmed. Sutton, C. J., and Parker, J., concur.