Opinion
33796.
DECIDED JANUARY 17, 1952.
Action for damages; from Murray Superior Court — Judge Paschall. August 9, 1951.
Pittman, Hodge Kinney, J. Paxson Amis, for plaintiff in error.
Field Hancock, Dudley G. Hancock, contra.
The petition, alleging facts for submission to the jury on the question as to whether or not the defendant was negligent, and it not appearing that the plaintiff's injuries resulted from a lack of ordinary care on his part, the trial court properly overruled the demurrer interposed thereto.
DECIDED JANUARY 17, 1952.
Dwane Carroll brought an action for damages in Murray Superior Court against Grade Evans, alleging substantially the following: On October 27, 1950, the defendant, a sawmill operator, employed the plaintiff and others at his mill some miles from Chatsworth in said county. The defendant possessed an Army jeep motor vehicle, which was at this mill on said date. The defendant furnished to such employees transportation from the mill to their homes, and on the above date, after the plaintiff and other employees had ceased their day's work, the plaintiff, under instructions of the defendant, was furnished said Army jeep to drive himself and others of the defendant's employees to their respective homes. This jeep was the only conveyance at the mill for the plaintiff and the other employees to use in getting to their homes. When the plaintiff was so furnished this motor vehicle, he was not informed of any mechanical defects in the same. After the plaintiff had driven this jeep a portion of the way towards Chatsworth, he discovered that the brakes were not in workable condition, and would not stop the vehicle. There being no other conveyance available, the plaintiff attempted to drive the jeep, to the "first place where he could have said vehicle worked upon," and as "he was topping a hill, proceeding toward Cisco, Georgia, near the old Duggan Post Office . . he saw immediately in front of him," the defendant, who was "parked in his motor vehicle on the right side of the road [in the same direction the plaintiff was driving] talking to a party, who was seated in a truck, parked on the left side of the road, and making it impossible for the plaintiff to pass either vehicle, without driving said Army jeep into a ditch." The plaintiff, "immediately attempted to halt said Army jeep by shifting into low gear, but because of mechanical defects," which were unknown to him until the emergency arose, he was unable to shift gears, and he had in this emergency "only two choices to make and they were," he could either "hit the lumber truck . . or he could attempt to avoid a collision . . by driving said Army jeep into a ditch on the side of the road." Upon seeing this situation confronting him, the plaintiff immediately asked his fellow employees in the jeep which would be the best course to take, and they told him to take to the ditch, and as this appeared to him "to be the best and least dangerous of the two chances, to prevent serious accident, he did drive said Army jeep into a ditch to the right side of said lumber truck, he doing all in his power, at the time to slow down said Army jeep, and avoid a serious accident." As a result, the jeep was wrecked, and the plaintiff received serious and permanent personal injuries, disabling him for any labor. The proximate cause of the plaintiff's injuries was the alleged gross negligence of the defendant in failing to inform the plaintiff of the mechanical defects of said jeep, in blocking the road as alleged, and in ordering the plaintiff to drive the defective jeep. The plaintiff prayed for judgment for damages.
The defendant filed a general demurrer to the petition, setting out that the petition did not allege any cause of action against him either as a whole or in part, and to the order and judgment overruling such demurrer the defendant excepted.
This case is in this court solely on the overruling of a general demurrer. It appears from the petition that the plaintiff was confronted with an emergency brought about as a result of the alleged negligence of the defendant. He had two choices, one being to collide with the truck in front of him, and the other being to swerve to the right of the truck and into the ditch beside the road. It cannot be said as a matter of law that the plaintiff was negligent in undertaking to avoid striking this truck in front of him and thereupon driving off the road and into the ditch. "Where one is confronted with a sudden emergency, without sufficient time to determine with certainty the best course to pursue, he is not held to the same accuracy of judgment as would be required of him if he had time for deliberation." Napier v. DuBose, 45 Ga. App. 661 (4-a) ( 165 S.E. 773); Savannah Electric c. Co. v. Russo, 71 Ga. App. 397, 401 ( 31 S.E.2d, 87), citing Brown v. Savannah Electric c. Co., 46 Ga. App. 393 ( 167 S.E. 773).
Code (Ann. Supp.) § 68-314 provides that "It shall be unlawful for any person to stop or park any automobile, automobile truck, tractor, trailer, or other motor vehicle . . on or along any State-aid road or highway, unless such vehicle be placed so that it is at least eight feet removed from the center line of said State-aid road or highway; and such vehicle shall be so parked that no portion thereof shall be within eight feet of the center line of such State-aid road or highway." Also, Code § 68-309 provides that no person shall place obstructions in the highway as to other users thereof nor "unreasonably obstruct or impede the right" of others to drive thereon. The plaintiff was entitled to travel on this highway in order to reach some place at which he could have the brakes on the jeep repaired. At the time he endeavored to do this, he did not know that the jeep was further defective to such an extent that the gears could not be shifted into low gear in order to retard the speed of the jeep. The defendant, the employer of the plaintiff, was under a duty to furnish to the plaintiff and his fellow employees at the mill, a safe conveyance to transport them from the mill to Chatsworth, where they lived. It cannot be said as a matter of law that the defendant was not negligent in this particular. Except in plain and unmistakable cases, all such matters, including the plaintiff's failure to use due care in the premises, are questions for the jury. It cannot be said that the injuries received by the plaintiff were caused by his own failure to exercise due care for his own safety either in driving the jeep or in taking to the ditch when he was confronted with the sudden emergency, and also discovered that the jeep could not stop nor could its speed be retarded because of the defective gears. It cannot be said that the alleged negligence of the plaintiff was the sole proximate cause of the injuries. It is contended by the defendant (plaintiff in error here) that since the petition shows that the plaintiff was negligent, he cannot recover against the defendant. Under the comparative-negligence rule which prevails in this State, it is a jury question whether the plaintiff was more negligent than the defendant under the allegations of the petition. If the defendant was more negligent than the plaintiff, even though the plaintiff was in some degree negligent, the plaintiff would be entitled to recover. These are jury questions. Counsel for the plaintiff in error rely upon excerpts from Code § 66-303, and contend that Davis v. Ga. Coating Clay Co., 63 Ga. App. 265 ( 11 S.E.2d 60) is authority to the effect that the court erred in overruling the demurrer in the instant case. In reading that decision in the light of its facts and the facts of the case at bar, the contentions of counsel for the plaintiff in error are not tenable.
It follows that the trial judge did not err in overruling the general demurrer to the petition.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.