Southeastern Stages v. Abdella

41 S.E.2d 799 | Ga. Ct. App. | 1947

Where, as here, the allegations of the petition clearly show that the intervening negligence of a third person is the proximate cause of an alleged injury, the plaintiff is not entitled to recover against the bus company.

DECIDED FEBRUARY 7, 1947. ADHERED TO ON REHEARING MARCH 8, 28, 1947. This case is here on exceptions to the overruling of a demurrer. W. S. Abdella brought an action for the recovery of damages for alleged injuries received on account of the alleged negligence of the Yellow Cab Company, a corporation, and the Southeastern Stages of Atlanta, a corporation and a common carrier of passengers.

The plaintiff purchased a ticket from the bus company in Athens, Georgia, to be transported to its station in Atlanta, Georgia. The bus on which the plaintiff was riding approached the bus station in Atlanta, going in a westerly direction on Cain Street. As the bus neared the bus terminal station in the City of Atlanta, it went into the intersection of Cain and Peachtree Streets, which last-mentioned street runs in a northerly and southerly direction. This intersection is in down-town Atlanta, much traffic going through said intersection. As the bus was crossing the intersection there was a green automatic signal light, which indicated that the bus had the right of way to proceed across Peachtree Street from east to west, along Cain Street. As the bus was crossing Peachtree Street for the purpose of reaching the bus station, a cab of the cab company traveling southward on Peachtree Street, entered the said intersection at a speed of 50 miles per hour, and against an automatic signal device showing red, which meant for the cab to stop. At this point "the defendant's driver of the said Yellow Cab ran into the said bus, while said bus was traveling as aforesaid, and while the signal light flashed "go" for the bus, and "stop" for the cab. At the time the bus was passing from east to west across Peachtree Street, the plaintiff, who had occupied a seat on said bus, had left his seat and was reaching for and had obtained his baggage which he held in his hand and was standing in the aisle of the bus, after securing the baggage, near his seat. At this point the cab "ran into said bus." The impact was severe. The bus swerved. The plaintiff was thrown against the seats of the bus and received certain alleged injuries. It does not here appear that the cab company filed any demurrer. The bus company filed a demurrer, which was overruled, and on this judgment it assigns error, and makes the plaintiff and the cab company defendants in error.

The plaintiff's specifications of negligence against the cab company are: "Speeding; reckless driving; running official traffic signals; failing to yield the right of way; running into and colliding with said bus; failing to apply brakes; failing to maintain proper lookout ahead," and further allege negligence under several ordinances of the City of Atlanta. The ordinances are generally: Section 88-702 of the City of Atlanta: Reckless driving. Section 88-703 of the City of Atlanta: Restrictions as to speed — reasonable and not to exceed 25 miles per hour. Section 88-708: (a) Autos drive on right; (e) "The driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has just entered the intersection."

The specifications of negligence against the defendant bus company are: (a) In failing to drive said bus at a careful and prudent speed not greater than was reasonable and proper, having due regard for the traffic, surface and width of street, and other conditions then existing, to-wit, said intersection being located in a congested downtown section of the City of Atlanta and being much frequented by vehicular traffic, in violation of section 88-704 of the City of Atlanta, same being negligence per se.

(b) In driving the bus at a speed to endanger the life, limb or property of a person in violation of the Code of the City of Atlanta;

(c and d) In operating said bus carelessly and heedlessly in disregard of the safety of others and likely to endanger the life of others in violation of section 88-702 of the Code of the City of Atlanta;

(e, f, and g) In that the bus driver failed to maintain a proper lookout in the direction in which the bus was traveling; and entered at said intersection at a speed of 20 miles per hour and in failing to observe the cab approaching the intersection at the rapid speed of 50 miles per hour, in violation of the requirements of extraordinary care and diligence which the defendant bus company owed to the plaintiff as a common carrier;

(h) In failing to apply brakes and reduce speed on approaching and entering the intersection in violation of the requirements of extraordinary care and diligence.

The defendant bus company filed a demurrer contending that the petition failed to set out a cause of action against the defendant bus company; that the petition shows on its face that the failure of the plaintiff to exercise ordinary care for his own safety barred him of the right of recovery which he otherwise might have had. There are several specific demurrers against the petition to the effect that the allegations of liability against the defendant bus company are mere conclusions of the pleader without any allegations of facts upon which to base them. In one paragraph of the demurrer it is alleged that the failure to observe the cab approaching the intersection, under the whole petition, is not a chargeable negligent act, since there was no duty on the part of the driver of the bus to observe traffic on Peachtree Street approaching as the cab is alleged to have approached; and further, the allegations of negligence in not stopping the bus before entering the intersection is not a chargeable act of negligence showing a failure on the part of the defendant bus company to exercise extraordinary care and diligence under the allegations of the petition as a whole.

We have set out substantially the issues made by the allegations of the petition and the demurrer insofar as the defendant bus company is concerned. Under the allegations of the petition insofar as the bus company is concerned, we may concede for the sake of argument that the bus company was in some respects negligent, still the bus company would not be liable on the principle of law that the sole proximate cause of the alleged injury was the acts of a superseding, intervening responsible agency — in the instant case the intervening negligence of a third party. We will not go into any extended discussion of a superseding proximate cause of negligence. We think that the decision in Horton v. Sanchez,57 Ga. App. 612 (195 S.E. 873) by a full bench, fully covers the question under discussion here. In that case Judge Sutton, speaking for the court said: "Indeed, the petition shows the act of the third party to be the sole and proximate cause of the plaintiff's injury . . the act of the defendant, whether negligent or not, could not have been the proximate cause of the injury. The intervening negligent act of the third party, Califf, was the actual, immediate and proximate cause. His act broke the connection, if any there was, between the original act of the defendant and the injury to the plaintiff. It certainly could not be said that the defendant, Dr. Sanchez, could reasonably have anticipated that Califf (3rd party), in approaching from the rear, with no oncoming cars or traffic to prevent his turning to the left, would have elected to violate the plain provisions of the statute and attempt to pass to the right of the defendant's car. . . It is earnestly contended by the plaintiff in error that the question of proximate cause should have been referred to a jury. Generally, that question, like the question of negligence, is one for a jury; but where the allegations of the petition, as here, clearly show that the proximate cause of the injury to the plaintiff was the negligent act of a third person, rather than the act of the defendant, whether negligent or not, the question must be decided by the court as a matter of law. A proper construction of the petition in the present case requires a holding that the proximate cause of the plaintiff's injury was the negligent, intervening act of the third party, Califf, and not that of the defendant, Dr. Sanchez. Accordingly, the judgment sustaining the general demurrer must be affirmed." The case ofBozeman v. Blue's Truck Line, 62 Ga. App. 7 (7 S.E.2d 412), cited by counsel for the plaintiff, and no other decision cited by the plaintiff, is authority to the contrary.

As to the bus company, there is no allegation of any negligent act which was a proximate cause of the plaintiff's alleged injury. As to whether the acts of the plaintiff, as shown by the petition, in any way contributed to his alleged injury as between him and the taxicab company, is a jury question.

We think the court erred in overruling the demurrer of the bus company.

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