Opinion
35877.
DECIDED SEPTEMBER 28, 1955. REHEARING DENIED OCTOBER 13, NOVEMBER 1, 1955.
Action for damages. Before Judge Whaley. Dodge Superior Court. June 10, 1955.
Nelson Nelson, Carl K. Nelson, A. Russell Ross, for plaintiff in error.
Will Ed Smith, contra.
1. ( a) Where an automobile operator approaching an intersection of main public streets in a city is so inattentive as not to keep a constant lookout ahead and as a result thereof to run into an object in his path which is clearly visible, it is ordinarily a question for jury determination whether such conduct amounts to gross negligence.
( b) Where two defendants are sued jointly as alleged joint tortfeasors, the causal connection between an original act of negligence on the part of one defendant, and injury resulting from an intervening negligent act of the other is not necessarily broken if the circumstances are such that the acts of negligence combine to cause the injury, and the first defendant had reason to anticipate that as a result of its negligence the negligence of the other defendant might occur. Accordingly, the petition here states a cause of action against the complaining defendant corporation, the negligence of which in improperly replacing a stop sign at the entrance to a through street is alleged to have combined with other negligent acts of the host motorist to cause the plaintiff's injuries.
2. Under the Uniform Act Regulating Traffic on Highways, (Ga. L. 1953, Nov.-Dec. Sess., pp. 556, 572; Code, Ann. Supp., § 68-1617) it is negligence per se to alter, injure or remove any traffic-control device or any part thereof without lawful authority where such device or signal has been properly erected, whether by the State Highway Department within its jurisdiction or by municipal authorities within their jurisdiction.
DECIDED SEPTEMBER 28, 1955 — REHEARING DENIED OCTOBER 13, NOVEMBER 1, 1955.
Pennie Studstill filed an action in the Superior Court of Dodge County against Mrs. Sybil Liggin, a resident of Dodge County, and Richards Associates, Inc., a nonresident of such county, seeking damages for personal injuries. The plaintiff alleges that she was a guest in the automobile driven by the defendant Mrs. Liggin; that this car was proceeding in a southerly direction on Church Street approaching the intersection of that street with Academy Avenue, a main thoroughfare of the City of Dublin, between noon and 1 p. m. at a time when traffic on Academy Avenue was particularly heavy, in the main business area of the city; that said defendant "was driving at the excessive and unlawful speed of 35 miles an hour; did not notice the very heavy traffic on Academy Avenue which was dangerous and a clearly visible obstruction in the way of her automobile; was looking to the side and not keeping a constant lookout ahead, being engaged in conversation with one of the other occupants of the car relative to canning peaches. She did not stop at the intersection but on the other hand drove headlong into said intersection at said excessive rate of speed, attentive only to the question of canning peaches, and without paying any attention whatever to the manner in which she was driving her car or what objects might be in front of it, and in so doing collided with another automobile proceeding across Academy Avenue [which] had entered the intersection . . . and had more than one-half traversed said intersection when the said Mrs. Liggin drove her automobile out of Church Street into said intersection and crashed headlong into the automobile."
It is further alleged that Academy Avenue had, by appropriately pleaded city ordinance, been declared a boulevard or through street that the governing authorities thereof had caused to be placed on the northwest corner of said intersection a two-foot "Stop" sign; that on July 29 the defendant Richards Associates, Inc., was engaged in installing certain gas pipe lines pursuant to a contract with the city; that defendant, through its employees, laid a line of gas pipe in the earth between the curb and sidewalk on the west side of Church Street and in doing so removed the stop sign; that after the pipe was laid the stop sign was replaced by said defendant in such negligent manner that instead of facing traffic approaching Academy it was turned at right angles and faced the Academy Avenue traffic instead and was thus not visible to Church Street traffic which it was supposed to warn; that such defendant in the exercise of ordinary care knew that a natural consequence of such negligence would be the failure of a motorist to observe the stop sign at a sufficient distance from the intersection to have the vehicle under control and bring it to a stop before entering the intersection, and that "if said defendant had replaced said stop sign in its original position the defendant Mrs. Sybil Liggin would have observed the same 150 to 200 feet away, and have had her automobile under control, and would have stopped the same before entering the intersection."
The trial court overruled a general demurrer of Richards Associates, Inc., and the exception is to this judgment.
1. One contention of the plaintiff in error is that if the petition sets out a cause of action against the co-defendant Mrs. Liggin for gross negligence it shows on its face that such negligence constituted an independent intervening cause of the plaintiff's injuries so as to render the corporation not liable for any negligence on its part, and if, on the other hand, as is contended, the petition does not set out a cause of action against Mrs. Liggin for gross negligence, the corporation's general demurrer should have been sustained because it is a nonresident defendant and no cause of action is set out against the sole resident defendant.
(a) "`Where one driving an automobile is so inattentive as to look to the side and not keep a constant lookout ahead, when there is an object in his path which is clearly visible that he might run into,' the question is ordinarily one for the jury as to whether, under all of the proved relevant facts and circumstances of the case, his failure to exercise the precaution of looking along the street ahead of the vehicle is gross negligence. Jordan v. Lee, 51 Ga. App. 99 (3) ( 179 S.E. 739); Smith v. Hodges, 44 Ga. App. 318, 321 ( 161 S.E. 284). This would be especially true where the driver was approaching an intersection of main public streets in a city." Capers v. Martin, 54 Ga. App. 555 (4) ( 188 S.E. 465). Accordingly the petition here which alleges that Mrs. Liggin was guilty of gross negligence in that she entered an intersection of main public streets in a city at an unlawful rate of speed and without keeping a lookout ahead, while looking to the side and giving her attention to a private conversation, and in so doing collided with an automobile which had already entered and was more than half-way through the intersection, poses a jury question as to gross negligence on the part of the co-defendant and does not show on its face that the plaintiff in error here, an alleged joint tortfeasor, is being sued in the wrong form.
(b) Nor does the petition show on its fact that Mrs. Liggin's negligence constitutes such independent intervening cause of the injury and damage to the plaintiff as to "insulate" the complaining defendant against any negligence of which it might be guilty. To do so, the petition would have to show on its face that the negligence of the plaintiff in error was not the proximate cause or concurrent proximate cause of the injuries in that the same result would have occurred whether or not the condition caused by the plaintiff in error had existed at the time. The act of the plaintiff in error was static — it created a condition which deprived motorists using Church Street traffic of the benefit of the traffic warning in the form of a stop sign erected pursuant to a city ordinance. The negligence of the co-defendant was active — she looked to the side of the road instead of ahead at the intersection and drove into an automobile which, under the allegations of the petition, not only had the right of way as a matter of law but also as a matter of fact, it being more than half-way across the intersection. Plaintiff alleges, however, that had the stop sign been in proper position the co-defendant, inattentive as she was, and looking to the side though she was, would have seen it 150 to 250 feet away, and would have had her automobile under control and would have stopped before entering the intersection. In view of the fact that the petition alleges that Mrs. Liggin was looking to the side of the road, the only fair inference from this pleading is that it poses a question of fact for jury determination, and not, as contended, that it states only a conclusion unsupported by and contradicting the factual averments. The allegation here that if the plaintiff in error had properly replaced the stop sign, Mrs. Liggin, although negligent in other respects, would have seen it and discontinued her negligence is very similar to the allegation in Western Atlantic R. v. Groover, 42 Ga. App. 200, 204 ( 155 S.E. 500), that if the defendant had removed the petitioner from the wreckage before backing its train, he would have received no injury other than that to his head, which was held not to be a conclusion of the pleader. Traffic signals are erected for the benefit of persons using the highway ( Whitley Construction Co. v. Price, 89 Ga. App. 352 (1c), 79 S.E.2d 416), and Mrs. Liggin here was deprived of the benefit of the warning that she was approaching a stop street which she would have had except for the negligence of the plaintiff in error. It is alleged that had she had such warning she would have heeded it, and such allegation raises an issue of fact rather than one of law. As stated in Allyn Bacon Book Pub. v. Nicholson, 58 Ga. App. 729 ( 199 S.E. 771): "While the causal connection between an act of negligence and a resulting injury is not broken by an intervening act which immediately causes the injury where this act can, in the exercise of due care, be foreseen by the original wrongdoer, the negligence in the intervening act may concur with the negligence of the original wrongdoer in causing the injury, and the perpetrators of both acts may be joint tortfeasors." See also Callahan v. Cofield, 61 Ga. App. 780, 782 ( 7 S.E.2d 592). Whether or not the negligence of Mrs. Liggin, if proved, constituted the independent intervening cause of the plaintiff's injuries, or only a concurrent proximate cause thereof, is accordingly a jury question.
2. It is alleged that the plaintiff in error was guilty of negligence per se in violating that provision of the Uniform Act Regulating Traffic on Highways (Ga. L. 1953, Nov.-Dec. Sess., pp. 556, 572; Code, Ann. Supp., § 68-1617) to the effect that no person shall without lawful authority alter, injure or remove any traffic-control device or any part thereof. Other pertinent provisions of the act are as follows: Code (Ann. Supp.) § 68-1601 provides that the provisions of these chapters "relating to the operation of vehicles refer exclusively to the operation of vehicles upon highways" with certain exceptions. Code (Ann. Supp.) § 68-1606 provides that the provisions of these chapters "shall be applicable and uniform throughout this State and in all political subdivisions and municipalities therein." Local authorities are by Code (Ann. Supp.) § 68-1607 (6) expressly given power to designate any highway as a through highway, but under subdivision (11b) such designation shall be ineffective until and unless signs giving notice thereof have been erected. Under Code (Ann. Supp.) § 68-1504, street and highway are made synonymous by definition. The act is accordingly construed to apply to streets and highways within the corporate limits of municipalities as well as without, and whether the traffic-control device is erected by authority of the State Highway Department under Code (Ann. Supp.) § 68-1610 or by local municipal authorities under Code (Ann. Supp.) § 68-1611, so that an unwarranted alteration of the stop sign would constitute a violation of Code § 68-1617, and would be negligence per se. As stated above, it is a matter for jury determination whether or not such negligence, if proved, would constitute a concurrent proximate cause of the injuries to the plaintiff so as to render the defendant in error liable for the acts of its employees in improperly replacing the stop sign and leaving it in such position that it could not be seen by traffic approaching the through street.
The petition set out a cause of action against the plaintiff in error, and the trial court did not err in overruling the general demurrers interposed.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.