Summary
In Mathis, the plaintiff was injured when the car in which he was a passenger collided with a tractor that was driving on the wrong side of the road, before dawn, without headlights.
Summary of this case from Hendricks v. DupreeOpinion
32568.
DECIDED JULY 13, 1949.
Action for damages; from Tift Superior Court — Judge Forehand. April 2, 1949.
Briggs Carson Jr., for plaintiff. R. D. Smith, for defendant.
1. ( a) A statement in a petition, that a tractor with road drag, engaged in the maintenance of county roads, was working such roads while in the left-hand traffic lane, is not by itself enough to allege a violation of Code § 68-303 and to constitute negligence per se, since this Code section applies primarily to vehicles engaged in transportation, and it is not shown that the act of working a road with such tractor while on the left-hand side constituted a lack of due care, or that it would have been possible to perform the same activities while on the right-hand side of the road.
( b) A statement in a petition, that a tractor with road drag, engaged in the maintenance of county roads, was working such roads and was in one traffic lane of such roads, at 5:30 a. m. on a dark morning, with no lights, is sufficient to allege a violation of Code § 68-302, requiring that every motor vehicle and tractor shall be equipped with proper lights.
2. ( a) A warden of a prison camp having supervision of the maintenance of county roads is not, in the absence of wilfulness, fraud, malice or corruption, liable for acts performed colore officii, which acts are discretionary in character. Price v. Owen, 67 Ga. App. 58 ( 19 S.E.2d 529).
( b) A warden of a prison camp having supervision of the maintenance of county roads is liable for negligence in the performance of ministerial acts when such negligence is the proximate cause of injury to third persons.
( c) The actual work of running a tractor with road drag for the purpose of maintaining county roads is such a ministerial function as would subject the person performing the same to civil action when so negligently performed as to constitute a violation of law, and to be the proximate cause of injury to third persons.
3. The rule of respondeat superior does not apply where public officers are sought to be bound by the negligence of subordinate officers or employees, unless there has been a failure to exercise due care in the selection of such subordinates, or the officers have actual knowledge of the negligent acts of their employees, and their knowledge, coupled with a refusal to correct or properly instruct such employees, amounts to a ratification of such negligent act.
DECIDED JULY 13, 1949.
The plaintiff in error, L. D. Mathis, herein referred to as the plaintiff, brought suit in Tift Superior Court against J. G. Nelson. The petition alleges that the defendant is Warden of Tift County and as such has control of county roads, their maintenance and upkeep, county road equipment, and the manner in which it is used for the maintenance of the county roads. At approximately 5:30 a. m. on the morning of September 13, 1941, the petitioner's son collided with a tractor and drag machine, which was being operated under the defendant's supervision and direction. The tractor was moving toward the plaintiff's automobile on the left-hand side of the road, without lights, and the driver of the plaintiff's automobile was unable to see the machine until the collision occurred, due to the fact that the defendant was also approaching the plaintiff's car in another automobile, and the plaintiff's son, the driver, was blinded by the lights of the car and the dust resulting from the speed thereof. It was further alleged by amendment that the defendant had passed the tractor within a space of several minutes immediately preceding the collision, and knew that it was being operated on the leftside of the road and without lights, but that the defendant failed to direct the driver thereof not to operate the tractor in such negligent manner.
The defendant demurred to the petition on the grounds, that it failed to set forth a cause of action, that it showed no liability to the plaintiff on the part of the defendant, and that the defendant could not be charged with the negligence of the driver of the tractor.
To the ruling sustaining the demurrers and dismissing the action the plaintiff excepts.
1. The first question to be decided here is whether or not the plaintiff has affirmatively alleged any act of negligence as the proximate cause of the collision referred to. In this regard, it is doubtful that the mere fact that a tractor and drag machine engaged in working the road is on the left-hand side thereof would be a violation of Code §§ 68-303 or 105-112 relating to motor vehicles passing on the right, as contended. It may often be necessary to work a road machine on the left side of the road, or even in such a position as to completely block the road and, if sufficient precautions were taken to warn approaching motorists, this act could not be deemed actionable.
However, Code § 68-302 requires that every motor vehicle and tractor shall be equipped with lamps, which shall throw light a reasonable distance ahead. A violation of this Code section constitutes negligence per se, and it is ordinarily a question for the jury as to whether such negligence is the proximate cause of the injury. See Bach v. Bragg Bros. Blackwell Inc., 53 Ga. App. 574 ( 186 S.E. 711). While it might, as a necessary incident to the working of roads, be necessary to proceed otherwise than in the ordinary direction of traffic, there would be no such excuse for failing to have the tractor properly lighted at a time of day when it was still dark.
2. The defendant further contends, on the authority of Price v. Owen, 67 Ga. App. 58 (supra), that there is no liability on the part of a warden of a public-works camp for the commission of a tort by a person working under his supervision, in the absence of wilfulness, fraud, malice, or corruption on his part. That case simply holds that a warden, in the absence of wilfulness, fraud, malice, or corruption, is not liable while acting in a discretionary capacity. The facts of the case showed that the alleged injuries were committed by the acts of convicts who were under the warden's control, and whom he had permitted to roam about without guard. The warden was not present and had no knowledge of the acts at the time, and the only liability which might have been imputed to him was an abuse of a discretionary power.
This case is different in two ways: first, the act here alleged is the performance of a ministerial, rather than a discretionary function, since it involves the actual progress of the work and the manner in which it is performed. "Should the city decide when a street should be opened, closed or repaired, or when a sewer should be built, it is clearly exercising legislative or judicial functions; but when it engages in the work of opening, closing, or repairing a street, or building a sewer, and is thus engaged in the physical execution of the work, it is evidently in the discharge of duties purely of a ministerial nature." City Council of Augusta v. Owens, 111 Ga. 464, 478 ( 36 S.E. 830). It follows that the actual progress of such work by a local government is of a ministerial character, and that the duties of a road supervisor in carrying out the physical details of the work are likewise ministerial in nature. Likewise, the supervision and control by the road supervisor of a subordinate who is actually running the road machine are of the same character.
Applying this rule, we are compelled to follow the policy of most of the States, which holds that "a public officer is liable for personal injuries resulting from his negligence, where the duty imposed upon him of keeping the streets or highways in repair is ministerial in character and not judicial or discretionary." See Stevens v. North States Motor Inc., 161 Minn. 345 ( 201 N.W. 435, 40 A.L.R. 36).
A motorist upon the public highways of this State has a right to assume that the road ahead of him is clear, and it may be generally stated that any person responsible for the obstruction of a highway is under the duty to exercise proper care that approaching motorists are warned of such obstruction. Doby v. W. L. Florence Const. Co., 71 Ga. App. 888 ( 32 S.E.2d 527), and cases cited thereunder.
3. Secondly, this case differs from Price v. Owen, supra, in that it is alleged that the defendant had actual knowledge of the fact that the employee under his supervision was driving without lights, that he passed the tractor shortly before the accident, and that he did not in any manner correct the situation or instruct the driver to use lights. Such allegations must be taken as true against a general demurrer, and are sufficient to create a jury issue as to whether or not the defendant in point of fact ratified the acts of the driver of the tractor in such manner as to make him personally liable for those acts.
"The rule of respondeat superior does not apply where public officers are sought to be bound by the negligence of subordinate officers or employees, unless there has been a failure to exercise due care in the selection of such subordinates, or the officers have knowledge of the negligent acts of the inferior officers. In other words, their liability or nonliability rests upon their knowledge or lack of knowledge of the negligence of their employees or inferior officers who are actually performing the work, and whether or not they have used due care in selecting competent employees for the work." Strickfaden v. Greencreek Highway Dist., 42 Idaho 738 ( 248 P. 456, 49 A.L.R. 1057).
The petition in the instant case is sufficient to show that the defendant had knowledge of the negligence of the employee or inferior officer who was working under his direction. It follows that the petition states a cause of action against the defendant on this theory, and that the trial court erred in sustaining the general demurrer and dismissing the action.
Judgment reversed. MacIntyre, P. J., and Gardner, J., concur.