East Alabama C. Lines Inc. v. Boyd , 80 Ga. App. 93 ( 1949 )

The court did not err in overruling the amended motion for a new trial for any of the reasons given.

DECIDED OCTOBER 11, 1949. This is a suit for damages for personal injury, brought by Sara O'Neal Boyd, by next friend, Mrs. J. H. O'Neal, against the East Alabama Coach Lines Inc. The jury, after hearing the evidence for both sides, rendered a verdict in favor of the plaintiff for $2500. The defendant made a motion for a new trial, and duly amended the same. The motion for a new trial was overruled and the exception is to this judgment.

The plaintiff alleged: that the injury occurred while riding on the bus of the defendant, between LaGrange, Georgia, and Roanoke, Alabama, as a paying passenger, in that the said bus collided with a truck traveling in the opposite direction from the bus. It is further alleged that the collision occurred by reason of the fact that the driver of the bus, the agent and employee of the defendant, was driving said bus at a reckless and excessive rate of speed, to wit, sixty to seventy miles per hour, and that while driving said bus he lost control of the same and ran into said truck while said bus was traveling in the center or near the center of the highway, and that due to the negligence of the defendant, its servant and agent, the bus driver, certain personal injuries were sustained; that the bus was driven in a careless, reckless and negligent manner, at an unlawful. dangerous. reckless and excessive rate of speed, at a greater rate of speed than was safe when the grade, width, traffic and common use of said highway were considered; in failing to have the loaded bus under control; in failing to have safe and effective brakes; in failing to turn to the right of the center of the highway on approaching a vehicle coming from the opposite direction; in driving said bus to the left of and across the center line of the highway and in driving the said bus against the truck which was traveling in the opposite direction.

The defendant denied that it was liable for any acts of negligence and insisted that the injuries to the plaintiff were caused by the intervening acts of the truck driver who crossed over to his left-hand side and ran into the side of the defendant's bus.

The defendant's general demurrer was overruled, and the case proceeded to trial.

Mrs. Sara O'Neal Boyd, the injured passenger, testified in substance as follows: That she bought a ticket and boarded the bus on March 10, 1946; that she purchased a round-trip ticket from Atlanta to Roanoke; that the bus driver was driving very fast at the time of the injury. "I would say he was driving sixty miles an hour. He was traveling more to the center than to the right of the road. . . I was sitting on the left side of the bus. The left side of the bus struck the truck, I had eight stitches taken right here [on my brows], fracture of the skull, my back was injured very badly, and I am not over it until yet. I am so nervous I have a hard time keeping myself together. My head aches a great deal, up above my eyebrows. Dr. Bonner treated me. I went to Dr. Miles, a specialist in Atlanta. I have been under his treatment a year. He wanted me to get a support upon my back. I have to wear a support on my back. I wore it for about a year. I still wear a support on my back, but it doesn't seem to do me any good. I will always have trouble with my back. I tried to work, but I couldn't, after I got hurt. I tried to get work at the Goodall Company. I averaged $20 a week. I worked there about two months, I will say. I quit because I just couldn't hold out. It was about four months after I was hurt in this accident. I moved to Atlanta and tried to work up there. Worked six weeks and had to quit. I made an average of $35 a week, and couldn't hold out.

I am very nervous now. Have a difficulty in sleeping. I cannot rest at night like I did before the accident happened. It seems to be getting worse instead of better. I did not have any trouble about sleeping before that. I did not have any trouble with my back before that. My head aches all the time and also [have trouble] with my eyes."

On cross-examination the same witness testified: "There was an impact on the bus, right opposite my head. The bus was going very fact. Was going faster than buses usually run. We were running faster than the bus was running from Atlanta. . . He was driving near the center. I don't know if he was over the center line or not. . . He was on the center line, I imagine. He was on the center line. I wouldn't testify that he was over it."

On redirect examination the same witness testified that she was unconscious about two hours after the injury occurred. "I remember little things but not all that happened." She testified that the truck was coming from Roanoke to LaGrange, the bus going in the opposite direction.

Mrs. J. H. O'Neal, mother of Mrs. Sara O'Neal Boyd, testified substantially: that she was on the bus when the wreck happened and the resulting injury to her daughter; that the bus was "going very fast. My opinion about 60 miles an hour. I don't know what happened after the wreck. It knocked me down and I was off just a little bit myself. . . I heard the glass breaking and I heard the sound of people excited and groaning. My daughter was unconscious after I regained consciousness, and she was not herself at all until way after we got her to the hospital that night. . . She has not recovered from the injuries she received from this wreck. Her head pains her every day, dead from here back to here (indicating) no feeling in it; her back, — she suffers from her back. . . She suffers all the time. She groans a lot in her sleep. . . The truck hit the bus, over on the side of the bus somewhere. . . I did not see it. The truck and bus sideswiped. I think it was too far from the middle of the road. It was just about the center. I would say the bus wheels were about the center of the line. Might have been across it, but I won't be sure, but it was right near it. My daughter went to a specialist in Atlanta. . . She was under his care about three or four months, she was wearing a brace all the time."

Harry Sheppard, a passenger on the ill-fated bus, testified that the speed of the bus at the time of the wreck was right around 65 miles an hour; that he remarked to a fellow passenger that the bus driver was driving too fast; that the truck knocked a big hole in the side of the bus; that "the only thing that I know the driver of the bus was doing wrong was that he was going 65 miles an hour"; that the driver (of the bus) was driving too fast.

Howard Holderfield, sworn for the defendant, testified in substance that he was driving the bus when the wreck occurred; that he thought he was driving 35 or 40 miles an hour at the time of the wreck. On cross-examination the same witness testified that he was just guessing at the speed the bus was running at the time of the wreck; that the bus was an old bus and did not have a speedometer on it, nor did it have a governor on it; that the bus was not going over 30 miles an hour; that he, the bus driver dimmed the lights on the bus, but could not say whether or not the truck driver dimmed the truck lights. He testified further that at the time of the wreck the front wheels of the bus were on the pavement, and one of the duo wheels on the rear of the bus was off the pavement; on recross-examination he testified that it was his estimate that the bus ran about 150 feet on the highway before coming to a stop, after the wreck, and that the truck went about 100 to 150 feet across a filed.

R. L. Crawford, a State trooper sworn for the defendant, testified that when the troopers arrived at the scene of the wreck that the truck was off the road, on the same side of the road the bus was; the right wheels of the bus were off the paved portion of the highway when the troopers arrived. The witness was uncertain about the location of the wheels of the vehicles at the time of the impact, but thought the right wheels of the bus were off the pavement and all the wheels of the truck were on the pavement. He thought the truck went 70 feet after the collision, and that the bus went 240 or 270 feet — "I think it was 270 feet from where the impact was."

Harold Oldham, the driver of the truck, testified that the bus was on the correct side of the road when the collision occurred; and that the lights of the bus blinded him; that he followed the sand or the dirt which had washed in the road and in doing so, due to the blinding light of the bus, drove into the bus.

Dr. Martin T. Myers, by deposition, developed the fact of the condition of the plaintiff five months after the wreck, and because of such injuries Dr. Myers advised complete rest, certain exercises, further checking with another doctor, and the wearing of a heavy surgical garment. He did not give her a permanent disability percentage. According to his testimony, there were numerous injuries apparent at the time of the examination.

John Galasso, present superintendent of the plant (but not superintendent in 1946) testified that he knew Sara O'Neal while she was working with the company; that the records showed that she quit voluntarily to get married; that she was not discharged; that she did not make any complaints about not feeling well and made regular time, with the possible exception of a day or two now and then. He did not recall whether or not Miss O'Neal had a physical examination.

L. L. James, superintendent of the city schools, testified that Sara O'Neal attended school fairly regularly; that she reported being in an accident in 1946, and limped some, walked a little stiff; that there was nothing unusual as to the length of the absences. 1. The defendant East Alabama Coast Lines Inc., earnestly insist that the plaintiff was not entitled to recover in this case, and by way of argument on this point state that it is well established that in order to recover on account of the negligence of another, the negligence must first be proved and that such negligence must be the chief and preponderating cause of the injury. It is argued that the excessive speed of the bus is the only act of negligence on which any positive evidence was introduced; and further, that there was no positive evidence that the driver was driving across the center line of the highway. We have set out the evidence in detail. Code § 105-2008, as to imaginary or possible results of a tortious act being too remote to be the basis of recovery against the wrongdoer; and the contents of Code § 105-2009 as to damages traceable to the act of a wrongdoer, the resulting injury not being the legal or natural consequences, but too remote and contingent, set out correct principles of law, but do not aid the defendant here, in view of the positive evidence as to the excessive speed of the bus (negligence per se), and other evidence which was before the jury. The jury considered the evidence sufficient on which to base a recovery by the plaintiff. In support of the theory that the injury in the instant case was not the natural and proximate result of the negligence of the defendant, counsel cite the following cases: Perry v. Central Railroad, 66 Ga. 746 (5);Mayor c. of Macon v. Dykes, 103 Ga. 847, 848 (31 S.E. 443); United States Casualty Co. v. Mathews, 35 Ga. App. 526 (3) (133 S.E. 875); McMahen v. Nashville, Chattanooga c.Ry. Co., 68 Ga. App. 397 (23 S.E.2d 81); Whitaker v.Jones, McDougald c. Co., 69 Ga. App. 711 (26 S.E.2d 545). And to the same effect counsel also cite Southern Railway Co. v. Webb, 116 Ga. 152 (42 S.E. 395), Hardwick v. Figgers,26 Ga. App. 494 (106 S.E. 738), Gillespie v. Andrews,27 Ga. App. 509 (108 S.E. 906), Rome Railway c. Co. v. Jones,33 Ga. App. 617 (127 S.E. 786), Georgia Power Co. v.Kinard, 47 Ga. App. 483 (170 S.E. 688), and Gallovitch v.Ellis, 55 Ga. App. 780 (191 S.E. 384). The facts in those cases, as may be determined by a reading thereof, are different from the facts, in the instant case. The jury evidently believed, as reflected by their findings, that the negligence of the driver of the bus was the causative factor involved in the resulting injury. And a comprehensive survey of the determining factors involved in the instant case, as shown by the evidence, compels us to sustain the findings of the jury. There is no merit in the general grounds.

2. There is only one special ground, which goes to the complaint that the court committed reversible error in charging the jury as follows: "Now, gentlemen, in that connection, I charge you, the injury claimed must be the direct result of the misconduct charged; but it will not be considered too remote, if, according to the usual experience of mankind, the result ought to have been apprehended. The act of a third person intervening and contributing to a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer, if such an act ought to have been foreseen. The original negligence still remains a culpable and direct cause of the injury. The test will be found in the probable injurious consequences which were to be anticipated, and not in the number of consequent events and agencies which might arise." Movant avers that the charge as given by the court was erroneous and not applicable to the evidence in the case; that there were no pleadings to authorize such a charge; that the evidence excluded the applicability of the excerpt from the court's charge as quoted hereinabove; and that the court erred in so charging. We are of the opinion that the charge of the court was not misleading to the jury, and therefore not harmful to the defendant. In our opinion counsel brought into play the proximate and intervening cause principle of law as shown by the following written request to charge: "Gentlemen, I charge you that where proximate cause of an injury to the plaintiff is the negligence of someone else other than the defendant, there can be no recovery against the defendant, although the defendant may have been guilty of negligence." And it is further the opinion of this court that it would have been the duty of the court to so charge, even in the absence of such request. It follows that the court did not erring charging the principle of law embraced in the excerpt. There is no merit in this special ground.

The court did not err in overruling the amended motion for a new trial.

Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.