Opinion
32311.
DECIDED JUNE 14, 1949.
Action for damages; from Richmond Superior Court — Judge G. C. Anderson. November 5, 1949.
Nathan Jolles, Isaac S. Peebles Jr., for plaintiff.
Hull, Willingham, Towill Norman, for defendant.
Where the petition shows on its face that the injuries complained of did not flow naturally and directly from the wrongful act or omission attributed to the defendant or could not reasonably have been expected to result therefrom or would not have resulted therefrom but for the interposition of some independent unforeseen cause, such antecedent wrongful act or omission of the defendant would not be the proximate cause of the injury complained of; and the court did not err in sustaining a general demurrer to the petition.
DECIDED JUNE 14, 1949.
Jessie S. Vinson brought an action for damages against Augusta Roofing and Metal Works. The material allegations of the petition were substantially these: On November 17, 1947, the plaintiff had stopped his car off of highway number one on the right-hand side of the highway, going south, about 21 miles from Augusta, Georgia. He had parked his car in a lawful manner and had assisted another traveler, Mrs. Arthur Hatcher, to pull her car out of the ditch, and he was standing behind his car in the process of taking the chains off the car and putting them in his automobile. Another traveler, whose name is unknown to the plaintiff, was standing some 100 feet back on the opposite side of the road signaling all traffic coming in that direction that an emergency existed, in that Mrs. Hatcher's car was in the ditch and she was attempting to get it out. The plaintiff was standing between the two cars, and the cars "were almost in the same line of traffic." It is alleged further: that a Ford truck belonging to the defendant and driven by C. A. Arrington, one of its employees, approached the scene; that, although he was signaled by the aforesaid person that an emergency existed, Arrington paid no heed and continued to drive at the same high and dangerous rate of speed in excess of 55 miles per hour, and wilfully caused another automobile, by his swift turn, to hit the Hatcher automobile, pinning the plaintiff between the Hatcher automobile and the plaintiff's own car; and that Arrington was operating the car under the influence of an intoxicant, and without a chauffeur's license, and in a reckless and dangerous manner without regard to the emergency signals given and without regard to the other persons lawfully on the highway, all of which it is alleged caused the plaintiff enumerated injuries and damages. By amendment it was alleged; that the automobile which struck the Hatcher automobile was owned and operated by A. J. W. Peek; that his car was following closely behind the defendant's truck, and the driver of the defendant's truck knew or in the exercise of ordinary care and diligence should have known that the Peek car was following the truck at a high and dangerous rate of speed; that the defendant's driver failed to give any signal of his turning "first to the right and then to the left in a zig-zag manner," or any indication that he was making a swift turn out of the ordinary and usual line of traffic; and that when Arrington made such turn he caused the Peek automobile to strike the Hatcher automobile. The defendant's demurrer was sustained and the plaintiff excepted.
Were the defendant's alleged acts of negligence the proximate cause, or one of the concurring proximate causes, of the injuries complained of? The answer to this question is determinative of whether the general demurrer should have been sustained. Reid's Branson on Instructions to Juries, Vol. 2, 130, § 335, quotes with approval the following definition of proximate cause in Cochran v. Kendrick, 43 Ga. App. 135, 142 ( 158 S.E. 57): "If in a given case the injuries complained of did not flow naturally and directly from the wrongful act or omission attributed to the defendant or could not reasonably have been expected to result therefrom, or would not have resulted therefrom but for the interposition of some independent, unforeseen cause, the defendant's such antecedent wrongful act or omission would not be the proximate cause of the injury complained of." The allegations of the petition, that the defendant "knew or in the exercise of ordinary care should have known" that Peek's automobile was following his truck at a high and dangerous rate of speed, when the petition is construed most strongly against the pleader, does not allege knowledge, but merely alleges implied notice and adds nothing to the special facts pleaded. Thomas v. Georgia Granite Co., 140 Ga. 459 ( 79 S.E. 130). The special facts pleaded do not show implied notice. The allegation thus becomes a mere conclusion of the pleader without facts pleaded to support such a conclusion, and the allegation is of no compelling value in determining the sufficiency of the petition as to whether a cause of action is set forth. Western Atlantic R. Co. v. Michael, 175 Ga. 1, 10 ( 165 S.E. 37); Thomas v. Georgia Granite Co., supra. The petition shows that the defendant's driver, Arrington, was driving the truck at a high and dangerous rate of speed in excess of 55 miles per hour, and that Arrington by his swift turn caused the Peek automobile, which was following him to hit the Hatcher car, causing the plaintiff to be pinned between the Hatcher car and his own automobile, between which the plaintiff had been standing. The defendant's driver had no control over or connection with the car driven by Peek and, so far as the petition shows, had no knowledge that Peek's car was following him. It is not alleged that the defendant's driver turned except to avoid coming in contact with the cars parked ahead of him. The defendant's driver was in no way responsible for Peek's not changing his course and driving to the left, as Arrington had done, and thereby avoiding striking the Hatcher car, unless he contributed to it by his sudden turn to the left to pass the parked automobiles without giving Peek any notice or signal of his intention so to do. It was Arrington's duty to turn to avoid striking the automobiles. In Roberts v. Eason, 6 La. App. 703, it is said: "It is the duty of one driving an automobile behind another automobile to so regulate the speed of his car and the distance between it and the car ahead of it as not to collide with a truck parked on the public street in front of him in case the car he is trailing turns sharply to avoid striking the truck." At the time of the occurrence in question, the car of the defendant had entirely passed the parked automobiles and had not touched them. If the defendant's truck was traveling at a high and dangerous rate of speed, exceeding 55 miles per hour, and Peek was following the defendant's truck closely and likewise driving at a high and dangerous rate of speed as alleged, this would indicate that Peek was also violating the speed law; and if by reason of this Peek was unable to stop his car or turn to the left quickly enough to pass the parked cars without a collision, the sole proximate cause of the collision would be the act or acts of Peek, and the defendant would not be liable for the injuries. The petition affirmatively shows that the injuries did not flow naturally or directly from any or all of the alleged acts on the part of the defendant's driver, taken either singly or collectively. The failure of Arrington to see or heed the signal of the person, standing 100 yards back of the place of the occurrence on the opposite side of the road from the parked automobiles, and who signaled that Mrs. Hatcher's car was in the ditch and was being pulled out, did not proximately cause the collision; nor did the injuries flow naturally and directly from the driver's lack of a chauffeur's license, his intoxicated condition, or from the fact that he drove to some extent in a zig-zag way (not otherwise particularized in the petition); nor did any or all of the alleged acts of negligence cause the defendant's truck to directly strike the parked car; nor did any or all of them proximately cause or contribute to the reckless driving of Peek, whose independent act of so driving was unforeseen by the defendant's driver and could not reasonably have been expected to cause the injuries complained of. It was the duty of the defendant's driver to turn to the left in passing the parked automobiles, and it was Peek's duty while driving behind the defendant's truck to so regulate the speed of his car and the distance between it and the defendant's truck ahead of him as not to collide with Mrs. Hatcher's car, parked on the public highway in front of him, in case the truck of the defendant, which he was trailing turned sharply to avoid Mrs. Hatcher's car. The instant case is differentiated from those classes of cases cited by the plaintiff in which an automobile was turned without any signal in such a manner as to completely block the road by its changing entirely its direction of travel as the following car attempted to pass it. In this case the defendant's truck was not making a turn (such as at an intersection) which tended to block Peek's line of travel.
Applying the foregoing rules of law to the allegations of the petition, we are of the opinion that the negligence of the defendant's driver, if any, was not the proximate cause of the injuries complained of as a matter of law, and that the court did not err in sustaining the demurrer to the petition.
Judgment affirmed. Gardner and Townsend, JJ., concur.