Whitaker v. Jones, McDougald, Smith, Pew Co. , 69 Ga. App. 711 ( 1943 )

1. There can be no recovery on account of the negligence of the defendant which was not the proximate cause of the injury. If the cause was remote and furnished only the condition or occasion of the injury, it was not the proximate cause thereof.

2. "The standard by which to test the question of negligence vel non is undoubtedly the common experience of mankind; its existence implying the want of that care and diligence which ordinarily prudent men would use under the circumstances of the particular case." Norris v. Macon Terminal Co., 58 Ga. App. 313, 317 (198 S.E. 272). But this rule in the instant case does not require the defendant to anticipate or foresee and to provide against that which, according to the common experience of mankind, under the circumstances alleged, is unusual and not likely to happen, or, in other words, that which is only remotely and slightly probable.

3. If in the case here, 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.

4. Under the allegations of the petition the acts of negligence were either a remote cause or no cause, and the court did not err in sustaining the general demurrer.

DECIDED JUNE 8, 1943. REHEARING DENIED JULY 22, 1943. The petition averred that the defendant was in control of and operated a project, constructing and erecting for the United States Government what is now known as Camp Gordon, in a certain cantonment area. The project was the changing of several thousand acres of wooded lands, fields, streams, and valleys in Richmond County and adjacent counties into a modern military camp and post. The defendant employed between seven and nine thousand employees at said project, and it was being done for the United States Government under an order for quick construction of said camp, and on account of the size of said work and the demand for quick construction, it was charged that the defendant knew that it would have to employ continuously several thousand workmen who were personally unknown to it, and from various walks of life, and there would be several thousand vehicles and automobiles carrying persons and goods across this area of ground, and that thousands of people would be in and upon this area of construction; that the defendant in the progress of the construction of said project graded and laid out various streets and avenues over an area of approximately 5000 acres, which said streets were used by vehicles and by persons entering or leaving said project. The streets ran north and south and the avenues ran east and west, and they were at all times under the complete control, supervision, and management of the defendant, as well as were the vehicles and persons who were allowed on said project, as the defendant permitted only those persons and vehicles to whom it had granted permission to enter said cantonment area, and that the defendant allowed no one and no vehicle upon said project area without its express permission, and with the said person and the said vehicle to be under the defendant's supervision and control, and before any vehicle or person could enter said area the driver of such vehicle or such person was approved by the defendant; that the defendant conducted and supervised all travel of automobiles and persons upon said area, and that the defendant further knew, by reason of the fact that said area was ten miles from Augusta, and ten miles from Harlem, Georgia, and five miles from Grovetown, Georgia — which were the closest residential areas — that its employees and such other persons entering said project would necessarily have to use automobiles in entering said project and in doing business on said cantonment area, and that said employees and such other persons coming to said area would come in the morning, and from time to time during the day, and would depart in the afternoon, at "knocking-off time," and that thousands of vehicles so entered and left said project daily; that 25th Street, one of said streets, was one of the busiest streets and most heavily laden with traffic, and was used daily and at the time that the plaintiff was injured; that in order to handle the enormous number of persons and heavy traffic in said area the defendant took control and supervision of said vehicles and persons, and directed said persons and vehicles as to the manner of the use of said streets and avenues, as to the speed and the direction in which said traffic was to flow; that the defendant knew that when said several thousand persons and motor vehicles were seeking to leave said project at "knocking-off time," that many of the said vehicles were overcrowded and were operated at a high and dangerous rate of speed, and would be so operated if not controlled, and that the defendant, for several weeks before the plaintiff in error was injured, had posted on said streets and at many places on said area various signs restricting vehicles from traveling on said streets and avenues in excess of twenty-five miles an hour, and had specifically ordered no greater speed, such order being given over its loud-speaker system and by signs posted; that the plaintiff in error was on said area by reason of his then present business relation with the defendant, which was for the mutual benefit and aid to both defendant and plaintiff, and was in connection with the construction of said project, in that the plaintiff was a carpenter and was seeking to be put to work as a carpenter; that he had previously worked, and was assigned by the defendant badge No. 7107, and was issued a card to report to Mr. Hanna, foreman, in the area field, as a carpenter, which was accepted by Mr. Hanna, and the plaintiff had used said card and identification badge for the purpose of entering and leaving said area while at work or while seeking work as a carpenter; that on October 27, 1941, the plaintiff returned to said area to secure work under another foreman, and sought out a carpenter foreman personally known to him, and was told that as soon as he had an opening he would put him to work; that it was the custom of the defendant's employees, in making arrangements with a particular foreman over the various jobs going on in said area, to keep in touch with that particular foreman, which custom was known to the defendant, and that was the purpose for issuing the badge and identification card to the plaintiff; that on the right side of 25th Street travel was completely obstructed to vehicle traffic; in that across said right side there had been for many hours before plaintiff's injuries, a deep and wide ditch across it, which was left open for the purpose of receiving a sewer, which the plaintiff knew existed several hours before he was injured, and that just as he was proceeding across 25th Street, about knocking-off time on October 27, 1941, and was walking west to a parking lot maintained by the defendant for vehicles on said area, an automobile traveling south at a high, reckless, and dangerous rate of speed, ran into him and critically and permanently injured him; that said automobile was traveling at a speed between forty-five and sixty miles an hour, and that it had traveled at such a speed for at least 300 yards, and that other vehicle traffic, with the exception of said speeding car traveling south, was traveling north on 25th Street, which was heavily laden, and said vehicles traveling north were traveling at a moderate rate of speed; that as the plaintiff passed the north-bound traffic, he looked to ascertain any approaching vehicles, and proceeded to cross said street, when said automobile traveling in an opposite direction on said street, which was blocked by said previously opened ditch, at said high and dangerous speed and over-loaded with seven persons, knocked the plaintiff down, ran over him, and permanently injured him.

The petition charged the defendant with failing to stop the speeding car, and in allowing it to operate at an excessive rate of speed, and in not preventing it from traveling south on 25th Street, which was closed to south-bound traffic, and in not maintaining and having on said 25th Street help and guards to control traffic, after having attempted to control traffic and persons and vehicles in said cantonment area; in permitting to be operated at said time and place a dangerous way of ingress and egress to pedestrians such as 25th Street was at the time and place plaintiff was injured, in that it was not a reasonably safe street as hereinabove set out, and in announcing over its loud speaker its control of traffic and lulling petitioner into a sense of security by reason of the same, and by reason of the direction of the traffic as hereinabove set out, that the plaintiff was free from blame or fault and in no wise contributed to his injury; that the defendant was wantonly and grossly negligent, and was guilty of complete disregard for the safety of plaintiff and all other persons similarly situated, resulting in the injuries sustained by the plaintiff.

The demurrer questioned the legal sufficiency of the facts alleged on the general grounds that the petition did not set out a cause of action and that the negligence of the defendant was not the proximate cause of the injuries to the plaintiff, and that the proximate cause of the collision and resulting injury was the independent act of a third party, and that the petition failed to allege that the driver of the car that struck the plaintiff was an employee of the defendant at the time and was acting within the scope of his employment. While a ditch was dug across the street for the purpose of installing a water or sewer pipe, neither the ditch nor the physical condition of the private road or street impeded, interfered with, or affected in any way the manner in which the plaintiff was crossing the street when hit by an automobile traveling thereon. It seems to us, therefore, construing the petition most strongly against the pleader, that it comes to the question of the plaintiff contending that the defendant did not use due care in regulating the traffic of pedestrians and automobiles driven by strangers, or its employees, whether they were driving within or without the scope of their employment, or other persons passing over the private street within the grounds or premises of which the defendant had control.

Construing the petition most strongly against the pleader, the driver of the automobile which struck and injured the plaintiff, was in no way connected with the defendant as employee or agent. In order to recover in this case it must be made to appear, that not only was the defendant negligent in one or more of the ways alleged in the petition, but also that such negligence, if any, resulted in, as the proximate cause thereof, the injuries complained of. If 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 from the interposition of some independent unforeseen cause, the defendant's such antecedent wrongful act or omission, if any, would not be the proximate cause of the injury complained of. If the injury could not be reasonably anticipated as the probable result of an act of alleged negligence, such act is either a remote cause or no cause.

It is stated in Logan v. Cincinnati c. R. Co. (Ky.App.),129 S.W. 575, 577, as follows: "``A prior and remote cause can not be made the basis of an action if such remote cause did nothing more than furnish the condition, or give rise to the occasion by which the injury was made possible, if there intervened between such prior or remote cause and the injury a distinct, successive, unrelated, efficient cause of the injury. If no danger existed in the condition except because of the independent cause, such condition was not the proximate cause.' Thompson on Negligence, § 2."

"As negligence necessarily involves a violation or disregard of some duty which is known to the person charged therewith, it follows that knowledge of the facts out of which the duty arises is an essential element for consideration in determining whether one has exercised reasonable care or has been guilty of negligence." Norris v. Macon Terminal Co., supra. We recognize the rule that a condition may be so obviously dangerous as to be regarded as sufficient to charge a person responsible therefor with knowledge of the probability of an injury being caused thereby but yet, if no danger existed in a condition except because of an independent cause, such condition would not be the proximate cause.

The rule well affirmed by the authorities is that under the law a person is required to anticipate or foresee and guard against what usually happens or is likely to happen; but this rule does not require him to anticipate or foresee and provide against that which is unusual and not likely to happen, or, in other words, that which is only remotely and slightly probable. The general test in such cases is not whether the injurious result or consequence was possible, but whether it was probable; that is, likely to occur according to the usual experience of persons. A wrongdoer can not be held responsible according to occasional experience, but only for a result of consequence which is probable according to the ordinary and usual experience of mankind. Chicago c. R. Co. v. Dinius, 170 Ind. 222 (84 N.E. 9).

Bearing in mind that the driver of the automobile, according to the construction we must put on the petition, was not an employee or an agent of the defendant and that no active operating negligence is charged against the defendant, but that the plaintiff was injured by the act of a fellow traveler upon the private way or street of the defendant, and testing the petition by the principles hereinbefore stated, we do not think that the allegations of the petition set out a case of actionable negligence in that the alleged negligence, if any, was a remote cause, or no cause.

The judge did not err in sustaining the general demurrer.

Judgment affirmed. Broyles, C. J., and Gardner, J., concur.

ON MOTION FOR REHEARING.