Summary
In Long Construction Company v. Ryals, 102 Ga. App. 66, 115 S.E.2d 726 (1960) an intoxicated participant in a sidewalk altercation was pushed into the street and in the path of appellant's truck.
Summary of this case from Mixon v. Atlantic Coast Line Railroad CompanyOpinion
38342.
DECIDED JUNE 21, 1960. REHEARING DENIED JULY 7, 1960.
Action for damages. DeKalb Superior Court. Before Judge Guess. March 30, 1960.
Dudley Cook, for plaintiff in error.
Roland Neeson, contra.
1. Questions 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. Montgomery v. Southern Ry. Co., 78 Ga. App. 370 (1d) ( 51 S.E.2d 66); Harvey v. Zell, 87 Ga. App. 280, 284 (1a) ( 73 S.E.2d 605). Unless the allegations of the petition set up facts from which reasonable minds cannot differ as to the cause of the injury, they are sufficient to carry the case to the jury. Bazemore v. McDougald Construction Co., 85 Ga. App. 107, 110 ( 68 S.E.2d 163).
2. "`It is no defense in an action for an injury resulting from negligence that the negligence or wilful wrong of third persons, or an inevitable accident, or an inanimate thing, contributed to cause the injury, if the negligence of the defendant was an efficient cause without which the injury would not have occurred. A juridical cause need not be the sole cause.' Jaggard on Torts, 67. `If the damage has resulted directly from concurrent wrongful acts or neglects of two persons, each of these acts may be counted on as the wrongful cause.' Cooley on Torts (3d Ed.) 119." Rollestone v. Cassirer Co., 3 Ga. App. 161, 173 ( 59 S.E. 442).
3. Under the foregoing principles, the right of the plaintiff to recover for negligent conduct on the part of the defendant alleged to have proximately resulted in injury to the plaintiff is not barred as a matter of law by the mere fact that the allegations of the petition show also that the plaintiff's injuries were in some measure contributed to by his own voluntary intoxication. Hubbard v. Cofer, 98 Ga. App. 565, 567 ( 106 S.E.2d 358).
4. The petition stated a cause of action, as against a general demurrer sufficient to present a jury question as to whether under the application of the last clear chance doctrine the negligence of the plaintiff in placing himself in peril and in not discovering it until too late, was too remote to be considered as a contributing cause of the injury, and as to whether or not the negligence of the defendant's agent in failing to discover the plaintiff's peril and take steps to avoid the same by either reducing the speed of the vehicle, sounding his horn or turning the vehicle from its path, could be considered as the producing sole and proximate cause of the plaintiff's injuries. Casteel v. Anderson, 89 Ga. App. 68, 72 ( 78 S.E.2d 831).
5. While ordinarily a driver of an automobile, who is proceeding lawfully along a public street, is not bound to anticipate that an intoxicated person will step from the curb directly into the path of his vehicle, where, from the actions of the person injured and others on the curbside observed by him, he may reasonably anticipate that someone would get in the street ahead of his vehicle, he may under such circumstances, be chargeable with negligence in failing to take appropriate steps to avoid injuring such person, or persons. Whether his failure to exercise such care and to take such steps amounted to negligence, and whether it was the proximate cause of the plaintiff's injuries is a question solely for the jury's determination.
6. Only two of the special demurrers are argued and insisted upon in the brief of counsel for the plaintiff in error. The special demurrer to the allegations with respect to the duty of the defendant's driver to anticipate "such an occurrence" on the ground that there was no legal duty to anticipate that the plaintiff would leave his place of safety on the sidewalk and enter the street is but an elaboration of the general grounds of demurrer and is disposed of by the ruling thereon.
7. The allegations contained in paragraph 26 of the petition that the plaintiff did not instigate, cause or contribute to the altercation, and that the plaintiff at all times sought to disengage himself from the other man, are allegations of fact and not mere conclusions, nor are they necessarily contradictory of the allegations that the plaintiff was intoxicated. It follows that the trial court did not err in overruling the ground of the demurrer attacking those allegations for those reasons.
Judgment affirmed. Gardner, P. J., Townsend and Frankum, JJ., concur.
DECIDED JUNE 21, 1960 — REHEARING DENIED JULY 7, 1960.
The amended petition in this case alleged that the defendant's agent and servant was operating the defendant's pickup truck along a public street in the City of Atlanta approaching the intersection of another street; that both of said streets were approximately 40 feet in width, providing for "two lanes of motor vehicular traffic running in opposite directions"; that the driver's view of the intersection was unobstructed for a distance of 150 feet as he approached the same; that the driver observed the plaintiff and another person engaged in an altercation on a sidewalk and curb adjacent to the street, and generally conducting themselves in an angry and boisterous manner, which actions indicated that the plaintiff and the other man were "`tipsy,' intoxicated, under the influence of intoxicating beverages, [and] not in full and complete possession of their normal faculties"; that the plaintiff was pushed by said other man into the path of the defendant's truck which struck him and inflicted the injuries sued for; that the driver of the truck could have avoided striking the plaintiff after becoming aware of his intoxicated condition had he turned his truck to the left of its path or the right into the intersecting street, since there was no other traffic on the street which would have prevented him from doing so. The petition alleged that the defendant's driver was negligent in operating his truck at a speed greater than 25 miles per hour in violation of a valid municipal ordinance of the City of Atlanta; in driving his truck at a dangerous, reckless and unlawful speed of 35 miles per hour without due caution under the circumstances existing at the time and place and when he had knowledge of the condition of the plaintiff and the other man and of the existence of the altercation between them; in failing to exercise ordinary care by turning his vehicle so as to avoid striking the plaintiff; in failing to have his truck under control so as to stop it before striking the plaintiff; in failing to sound his horn to warn the plaintiff; and in maintaining and operating the truck without adequate brakes.