Letton v. Kitchen , 1928 Ga. LEXIS 230 ( 1928 )

Hines, J.

Charlotte Louise Kitchen, by her father as next friend, brought suit against W. H. Letton, W. W. Daniel, and Mrs. W. W. Daniel, for the recovery of damages for personal injuries. In her petition she makes this case. She was an infant of seven months at the time she was run over and hurt. When injured she was in a baby-carriage which was being pushed by a nurse on the sidewalk of Gordon street. She was injured at the intersection of Gordon and Queen streets in the City of Atlanta. A truck of W. H. Letton, driven by his servant, and an automobile driven by Mrs. Daniel, were being driven east along Gordon street. Mrs. Daniel, whose automobile was following the truck, attempted to pass the truck on the right, at or near the intersection of these two streets. At the same time Letton’s truck turned to the right, attempting to turn from Gordon street into Queen street. Mrs. Daniel then swerved and ran her automobile upon the sidewalk of Gordon street, and struck and severely injured petitioner as she was then being pushed in her carriage by her nurse along this sidewalk.' Mrs. Daniel was crowded or forced upon the sidewalk by the attempt of the driver of the truck to turn from Gordon street into Queen street. The truck was being driven at a speed of twenty-five miles per hour, in violation of an ordinance of the City of Atlanta, which prohibited the driving of a truck at a speed greater than fifteen miles per hour. The driver of the truck, before attempting to malte a right turn from Gordon street into Queen street, did not extend his arm at an angle above the horizontal, as is required by an ordinance of said city; he did not have his truck under control; and he approached the intersection of these two streets at a speed greater than ten miles per hour. Petitioner alleges that these acts of negligence contributed to and were the proximate cause of the injuries sustained by her.

Mrs. Daniel was driving her automobile at a speed of thirty miles per hour, in violation of a city ordinance which prohibited an automobile being driven at a rate of speed greater than twenty-five miles per hour. At the time of the injury she was attempting to pass the truck at the right, which was in violation of a city ordinance requiring trucks and automobiles to pass each other on the left. She failed to give audible warning to the driver of the truck of her intention to pass it, in violation of a city ordinance which requires that the driver of a vehicle overtaking another one going in the same direction, shall give, before passing, audible warning to the driver of the latter of the intention of the former to pass. She further undertook to pass this truck while it was crossing an intersecting street, without being directed so to do by a police officer or an operator of a street-car when snch car was standing still, in violation of an ordinance prohibiting a vehicle from passing an overtaken vehicle at an intersecting street, without such direction. She was running said automobile at a negligent rate of speed at the time and place and under the circumstances attending such injury, and in driving said automobile upon the sidewalk. These acts of negligence of Mrs. Daniel are alleged to have contributed to and to have been the proximate cause of the injuries to the plaintiff.

Letton demurred to the petition, upon the ground that the acts of negligence charged to his' servant in driving his truck were not the proximate cause of the injuries sustained by this child. The trial court overruled his demurrer, and this judgment was affirmed by the Court of Appeals. Letton v. Kitchen, 37 Ga. App. 111 (139 S. E. 155). The case is in this court upon certiorari to review this judgment of the Court of Appeals.

Both defendants were guilty of negligence per so. Mrs. Daniel was driving her automobile at a speed of thirty miles per hour, in violation of a city ordinance which prohibited such speed. She was attempting to pass the truck on the right side, which was a violation of a city ordinance requiring trucks and automobiles to pass each other on the left. She failed to give warning of her intention to pass the truck, in violation of a city ordinance which provides that a vehicle overtaking another vehicle going in the same direction shall first give audible warning. She further -undertook to pass the truck while it was crossing an intersecting street, without being directed to do so by a police officer or by the operator of a street-car when standing still, in violation of a city ordinance. Thus she was negligent per se in these several particulars. The petition further alleges that she was negligent in driving her automobile upon the sidewalk, whereby petitioner was struck, run over, and seriously injured. Clearly, under these allegations of the petition, which must be taken to be true upon demurrer, petitioner was injured by the negligence of the driver of the automobile.

The driver of the truck also was negligent per se. The truck was being driven at a speed of twenty-five miles per hour, in violation of an ordinance of the City of Atlanta which prohibited the driving of a truck at a speed greater than fifteen miles per hour. The driver of the truck, before attempting to make a right turn from Gordon street into Queen street, did not extend his arm at an angle above the horizontal, as is required by an ordinance of the city, and thus he was negligent per se. The petition further alleges that the driver of the truck was negligent because he did not have it under control, and because he approached the intersection of these streets at a speed greater than ten miles per hour, in violation of a State statute regulating the operation of automobiles upon public highways. Were all or any of these acts of negligence the proximate cause of the injury sustained by the infant petitioner? We do not think the fact that the truck was being driven in violation of the speed ordinance was the proximate cause of the injury sustained by petitioner. The truck was traveling ahead of the automobile, and the faster it traveled the more was the danger of a crash between it and the automobile decreased, and the necessity for the driver of the automobile to swerve from the street onto the sidewalk was likewise lessened. We do not think that the failure of the driver to have his truck under control was the proximate cause of the injury sustained by petitioner. This lack of control in no way contributed to her injuries. In Shannon v. Martin, 164 Ga. 872 (139 S. E. 671), the majority of the court held that the provisions of the act of August 15, 1921 (Ga. L. 1921, p. 255), relating to the speed of motor-vehicles upon approaching or traversing intersecting highways, do not apply to intersecting streets of a city. So the approach of the truck to the intersecting street at a greater speed than ten miles per hour can not be held to be negligence per se; but conceding that the jury might find that the rate of speed at which the truck approached this intersection was negligent, we do not think that such negligence was the proximate cause of the injury to plaintiff. It tended rather to lessen the dangers of such injury, as we have pointed out above.

We come then to consider the only other act of negligence charged to the driver of the truck, and that is, that he failed to give the proper signal of his intention to make a right turn into the intersecting street. Was his failure to give this signal the proximate cause of the injury sustained by this child, or did such failure appreciably contribute to its injuries? Can we say as a matter of law that this negligence of the driver of the truck did not appreciably contribute to the injuries of the plaintiff, and therefore was not the proximate cause of these injuries; or should the question of proximate cause, if the allegations of the petition are proved, be left to the jury? In answering this question it must be borne in mind that the proximate cause of an injury is not necessarily the sole cause. There may be plural causes. Rollestone v. Cassirer, 3 Ga. App. 161 (59 S. E. 442). Where two concurrent causes operate directly in bringing about an injury, there can be a recovery against either or both of the responsible parties. Georgia Ry. &c. Co. v. Ryan, 24 Ga. App. 288 (100 S. E. 713). Where one suffers injuries as the result of the concurrent negligence of two tort-feasors, the injured party may maintain a joint or several suit against the tort-feasors; and it will be sufficient to support a recovery in a joint suit if the negligence of both be a contributing cause of the injuries) Gooch v. Georgia Marble Co., 151 Ga. 462 (107 S. E. 47). Again, it must be borne in mind that generally the question of what is the proximate cause of an injury, like the question of what is negligence, is a question for the jury. Perry v. Macon &c. R. Co., 101 Ga. 400, 407 (29 S. E. 304); Central of Ga. Ry. Co. v. Tribble, 112 Ga. 863 (38 S. E. 356); Georgia Ry. &c. Co. v. Norris, 135 Ga. 838 (70 S. E. 793) ; Logan v. Hope, 139 Ga. 589 (77 S. E. 809); Mayor &c. of Unadilla v. Felder, 145 Ga. 440 (89 S. E. 423); Bonner v. Standard Oil Co., 22 Ga. App. 535 (96 S. E. 573); Georgia Ry. &c. Co. v. Ryan, supra.

Causal relation is one of fact; and it is always one for determination by a jury, except when the facts are such that they will support only one reasonable inference. Green’s Proximate Cause, 132. There must be no reasonable ground for two opinions. Properly construed, the petition alleges that the driver of the truck was approaching an intersecting street at an unlawful rate of speed; that at the same time the driver of the automobile was attempting to pass the truck; that the driver of the truck had not given the required signal of his intention to make the right turn into the intersecting street which he was approaching; that while the driver of the automobile was thus attempting to pass the truck, the driver of the latter turned to the right to enter the intersecting street; and that the driver of the automobile, being thus prevented from passing the truck, in order to escape a crash with the truck was forced to swerve from the street onto the sidewalk, when the automobile ran over and injured plaintiff. In other words, the wrongful act of the driver of the truck, in making this turn without, giving the required signal at the proper time and place, put the driver of the automobile in a place of peril, from which she was thus forced to escape by swerving from the street onto the sidewalk. “If one person wrongfully places another in a position of peril, whereby the latter makes a natural and reasonable effort to escape the threatened danger, the former is responsible for the consequences of such effort, precisely as if he had immediately caused them.” Western & Atlantic R. Co. v. Bryant, 123 Ga. 77, 82 (51 S. E. 20). In these circumstances it can not be held as a matter of law that the negligence of the driver of the truck did not appreciably contribute to the injuries sustained by the plaintiff. On the contrary we can not hold as a matter of law that the negligence of the driver of the truck appreciably contributed to these injuries. Under the allegations of the petition, it is a question of fact whether his negligence did appreciably contribute to these injuries; and this question must be answered by the jury, if the allegations of the petition upon this subject are sustained by the evidence.

It is urged by able counsel for the owner of the truck that the allegations of the petition do not allege with sufficient legal certainty that the negligence of the driver of the truck was the proximate cause of the injury sustained by petitioner. In view of what is said above, we do not think that this. contention is well founded. It is further insisted that the petition does not show that the negligence of the driver of the truck was the proximate cause of the injury, in the absence of an allegation that, had the driver of the truck given the required signal, the driver of the automobile would not have swerved onto the sidewalk, or would have acted any way differently from the way in which she did act. Fairly construed, as stated above, the allegations of the petition show that the driver of the automobile was put in a position of peril into which she would not have gotten if the driver of the truck had given, at the proper time and place, a signal of his intention to make this right turn, and had not, in the absence of such warning, undertaken to make this turn.

Again it is urged that every person has the right to presume that every other person -will obey the law, and that, in the absence of reasonable ground to think otherwise, the driver oE the truck could not reasonably have anticipated injury to the plaintiff growing out of the negligence of the driver of the automobile in attempting to pass on the right side of the truck, in violation of the municipal law. 29 Cyc. 516. This principle can be invoked by only the law-abiding and the prudent. A person who is breaking the law himself has no • right to count upon its observance by others. “A person, while grossly negligent himself, has no legal right to count on due diligence by others, but is bound to anticipate that others, like he has done, may fail in diligence, and must guard not only against negligence on their part, which he might discover in time to avoid the consequences, but also against the ordinary danger of there being negligence which he might not discover until too late.” Central Railroad &c. Co. v. Smith, 78 Ga. 694, 700 (3 S. E. 397); Atlantic &c. R. Co. v. Riley, 127 Ga. 566, 568 (56 S. E. 635); Davis v. Whitcomb, 30 Ga. App. 497 (8) (118 S. E. 488).

The alleged negligence of the driver of the truck being negligence per se, we can not hold, under the allegations of the petition, that this ngligence did not appreciably contribute to the injuries of the plaintiff. We can not hold as a matter of law that it did. This is a question for the jury. Upon proof of this negligence and the injuries to the plaintiff, the jury must answer this question: Under all the evidence and circumstances in proof, did this negligence appreciably contribute to the injuries of the petitioner? So we are of the opinion that the judgment of the Court of Appeals should be ■

Affirmed.

All the Justices concur, except Allcinson and Gilbert, JJ., who dissent. '