Opinion
41988.
ARGUED MAY 4, 1966.
DECIDED SEPTEMBER 14, 1966. REHEARING DENIED SEPTEMBER 28, 1966.
Action for damages. Crisp Superior Court. Before Judge Horne.
Perry, Walters, Langstaff Lippitt, R. Edgar Campbell, Robert B. Langstaff, for appellant.
Wright Reddick, Graydon D. Reddick, for appellees.
The trial court did not err in denying defendant's motion for judgment notwithstanding the mistrial.
ARGUED MAY 4, 1966 — DECIDED SEPTEMBER 14, 1966 — REHEARING DENIED SEPTEMBER 28, 1966 — CERT. APPLIED FOR.
Mrs. Sarah J. Bass brought suit against Oscar S. Justice to recover damages for the wrongful death of her minor son occasioned by a collision involving a vehicle driven by defendant and a vehicle in which plaintiff's son was a passenger.
The collision occurred at an intersection through which defendant had the right of way. Plaintiff's petition charged that defendant was guilty of negligence per se (Ga. L. 1953, Nov. Sess., pp. 556, 577) in the following particulars: "(a) In failing to drive at an appropriate reduced speed having regard for the actual and potential hazards then existing when approaching and going around a curve and when approaching a hill crest . . . (b) In failing to drive his motor vehicle at an appropriate reduced speed when approaching and crossing an intersection . . . (c) In driving his said motor vehicle at a speed in excess of 35 miles per hour in a business and residential district . . . (d) In failing to control the speed of said motor vehicle as was necessary to avoid colliding with petitioner's [sic] vehicle on said highway in compliance with the legal requirements and the duty of all persons to use due care. . ." Defendant alleged that the death of plaintiff's minor son was attributable solely to the negligence of the driver of the vehicle in which the son was riding. Trial of the case resulted in a mistrial. Defendant enumerates error on the judgment of the trial court denying defendant's motion for judgment notwithstanding the mistrial.
Evidence adduced upon trial of the case showed that on the night of the fatal occurrence plaintiff's minor son Joe Bass cut off one of his fingers while he and another boy, Billy Hobbs, were using workshop equipment at Crisp County High School in Cordele. After this incident Hobbs and Bass departed the high school in haste in Hobbs' pickup truck, to carry Bass to the local hospital. Traveling north on Pecan Street, Hobbs drove the truck at a high rate of speed, running through red lights along the way and blowing the truck horn continuously. As he approached the intersection of Pecan Street and U.S. Highway 280, he was traveling between 50 and 60 miles per hour. At this intersection a traffic control sign located on Pecan Street 15 feet south of the intersection directed vehicles traveling north on Pecan Street to "stop" before entering the intersection. From the sign visibility west was unobstructed for 90 to 100 yards on Highway No. 280. Hobbs testified that he slowed his vehicle to a rate of speed at which he could have stopped at the intersection if he had seen any traffic approaching. Before actually entering the intersection he looked in both directions, and then, seeing no other traffic, he proceeded into Highway 280.
At the same time defendant was driving a heavily laden tractor-trailer truck east on U.S. Highway 280, approaching the intersection with Pecan Street. The total weight of this vehicle and its cargo was approximately 56,000 pounds. Defendant's speed was 35 miles per hour. The highway lay in a long sweeping curve to defendant's right, and both sides of the center line of 280 were marked with yellow barrier lines. Other streets irregularly intersected 280 all along this area. The Pecan Street intersection was located just beyond the apex of the curve, .2 mile east from the Cordele city limits. Defendant testified that this area was residential, but not heavily populated.
Defendant saw the Hobbs pickup when he was approximately 120 feet from the intersection. "When I got round about 120 feet, I seen lights coming across this way pretty fast, and I took my foot off the accelerator and laid it on the brake. I didn't engage the brake, and it looked like he started to stop, and I reached over and put my foot back on the accelerator . . . The pickup just came, and it didn't stop. It didn't give me no chance . . . When I seen him come on, I just swerved and put my brakes on and we went together." A State Highway patrolman testified that defendant's vehicle made skid marks 20 feet long from the point the brakes were applied to the point of impact. The two vehicles skidded together 69 feet from the point of impact to the place where they came to rest.
1. In a negligence action the plaintiff's right of recovery is confined to proof of the specific acts of negligence charged in the petition. Livsey v. Georgia R. c. Co., 19 Ga. App. 687, 690 ( 91 S.E. 1074); Jackson v. Ely, 56 Ga. App. 763 (2) ( 194 S.E. 40); Wills v. Emory University, 94 Ga. App. 734 (2) ( 96 S.E.2d 220), and citations. Thus, whether the plaintiff is entitled to prevail here depends upon whether the evidence and inferences therefrom most favorable to plaintiff would authorize a finding for plaintiff on any one or more of the particulars alleged as constituting negligence per se.
The speed restrictions in force on the date of the collision are to be found in Section 48 of Ga. L. 1953, pp. 556, 577. (Since that time this section has been amended by Ga. L. 1963, p. 26; Ga. L. 1964, p. 294; Ga. L. 1965, p. 322; Code Ann. § 68-1626.) Material portions of Section 48 are as follows: "[a] In every event speed shall be so controlled as may be necessary to avoid colliding with any person, vehicle, or other conveyance on or entering the highway in compliance with legal requirements and the duty of all persons to use due care . . . [b] Any speed in excess of the limits specified in this section or established as hereinafter authorized shall be unlawful . . . 1. 35 miles per hour maximum in any business or residents district. . . [3] Where the total gross combined weight of trucks or trucktractors and trailers and load exceeds 16,000 pounds, the maximum speed shall not exceed 45 miles per hour . . . [c] The driver of every vehicle shall . . . drive at an appropriate reduced speed when approaching and crossing an intersection or railway grade crossing, when approaching and going around a curve, when approaching a hill crest . . ."
Uncontradicted evidence showed that defendant was driving not in excess of 35 miles per hour and therefore was not guilty of negligence per se in violating Subsection (b) of Section 48 of the Act. Subsection (a) of the Act does not place an absolute duty on any driver to avoid a collision. Flanagan v. Reville, 107 Ga. App. 382 (2) ( 130 S.E.2d 258). Where the evidence conclusively showed that the vehicle in which plaintiff was a passenger was not "on or entering the highway in compliance with legal requirements and the duty of all persons to use due care," defendant was not in violation of Subsection (a) of Section 48 of the Act in failing to control the speed of his vehicle so as to avoid collision with the other vehicle. The evidence would not have authorized a finding in plaintiff's favor with respect to specifications of negligence (c) and (d) as alleged.
2. Although the evidence showed that defendant was not traveling at a speed excessive under the provisions of Subsection (b) of Section 48 of the act, nevertheless the requirement of Subsection (c) is not applicable only to those who are already violating the law by traveling at an excessive speed. Nipper v. Collins, 90 Ga. App. 827, 828 ( 84 S.E.2d 497). "The only reasonable construction to be applied to Subsection (c) . . . is that a driver must reduce the speed of his vehicle in approaching an intersection so as to bring its immediate control within his power and render it safe to go into the intersection at the reduced rate of speed. If a driver approaches an intersection at a very low and lawful rate of speed it is a question for the jury as to whether in order to comply with Subsection (c) . . . he need further reduce the speed of his vehicle." Hardwick v. Georgia Power Co., 100 Ga. App. 38, 43 ( 110 S.E.2d 24).
A driver having the right of way at an intersection has the right to assume and to act on the assumption that drivers of vehicles approaching the thoroughfare on which he is traveling will yield the right of way, and he has the right to proceed at a reasonable speed even though he sees another vehicle approaching. Moffit v. Dean, 84 Ga. App. 109 ( 65 S.E.2d 637); Sitton v. Camp, 91 Ga. App. 870, 872 ( 87 S.E.2d 430); Central Container Corp. v. Westbrook, 105 Ga. App. 855, 862 ( 126 S.E.2d 264). However, it is the duty of the driver having the right of way "to exercise ordinary care in being alert to observe vehicles approaching the crossing, and to exercise ordinary care in the control, speed, and movement of his car to avoid a collision after he sees or by ordinary diligence could have seen that one is threatened or imminent." Eddleman v. Askew, 50 Ga. App. 540 (3) ( 179 S.E. 247); Powers v. Pate, 107 Ga. App. 25, 28 ( 129 S.E.2d 193); Lusk v. Smith, 110 Ga. App. 36, 40 ( 137 S.E.2d 734). "`The right to assume' and the `duty to anticipate' depend upon whether the circumstances are sufficient to warn one driver that another may fail to obey the law, which is a question for the jury." Bennett v. George, 105 Ga. App. 527, 530 ( 125 S.E.2d 122); Hennemier v. Morris, 48 Ga. App. 840 (1) ( 173 S.E. 924).
Defendant saw the headlights of the Hobbs vehicle "coming across this way pretty fast." At that time Hobbs was approaching the intersection at an excessive rate of speed. The evidence shows also that Hobbs was sounding the horn of his vehicle continuously. These circumstances were sufficient to authorize a finding that defendant was negligent in failing further to reduce his speed in order to comply with the statutory requirements.
In addition, there are other circumstances to support specifications of negligence (a) and (b): The extremely heavy weight of defendant's vehicle and cargo (23 tons); the limitation of visibility around the curve from Pecan Street (90 to 100 yards); the fact that the neighborhood was residential in character, though this fact was not sufficiently proved to define the maximum speed limit as 35 miles per hour; the fact that there were streets intersecting Highway 280 all along the area in which defendant was traveling; the fact that it was nighttime.
"Evidence of the force of the impact of a collision, or as to the distance which the automobile that caused the injury traveled from the point of the collision until it stopped, may of itself, and in connection with other circumstances, be sufficient to warrant a finding of the jury of negligence as to speed." Shockey v. Baker, 212 Ga. 106, 110 ( 90 S.E.2d 654).
The trial court did not err in denying defendant's motion for judgment notwithstanding the mistrial.
Judgment affirmed. Jordan and Eberhardt, JJ., concur.