Dalton v. McLendon
Dalton v. McLendon
Opinion of the Court
The court erred in awarding the nonsuits. The action was based on the concurring negligence of the defendants. In order to avoid a nonsuit, the plaintiff needed only to submit evidence which would have authorized the jury to find that McLendon’s negligence was the sole proximate cause of the collision, or that he was negligent in some respect alleged and that such negligence concurred with that of the other defendants in proximately causing the collision.
Burnice L. Massey, called for the purpose of cross-examination, testified in part: that on July 1, 1952, he was employed as a taxicab driver, and on that date picked up Dalton and Moore as fares at the Colquitt Cafe in Moultrie, Georgia; that from the Colquitt Cafe he went past the Norman Hotel and turned left on Second Avenue, went one block on Second Avenue to Second Street; that it was at the intersection of Second Avenue and Second Street where the collision took place; that at the time he was traveling on Second Avenue he was driving approximately 15 to 20 miles per hour; that, as he went into the intersection, he did not maintain that same speed, but “let off on the carbu
Charlie Brown Moore testified in part: that there were no obstructions at the intersection to prevent the driver of each car from seeing the other; that the taxi driver slackened the speed of the taxicab a “good bit” as he came down the street and went into the intersection; that the taxicab was traveling at about 25
The evidence authorized the jury to find that McLendon was negligent in at least one particular, in that he failed to yield the right of way to the driver of the taxicab at the intersection. Code § 68-303 (g), which was the law applicable at the time of the collision, provided: “An operator of a vehicle shall have the right of way over the operator of another vehicle who is approaching from the left in an intersecting highway, but shall give the right of way to an operator of a vehicle approaching from the right on an intersecting highway.” The petitions alleged four particular and specific acts of negligence as to the defendant McLendon. The first particular specification of negligence alleged as to McLendon was: “That the defendant William McLendon was guilty of negligence in failing to operate his car on Second Street as he approached Second Avenue in such a manner as to have said car under control and to avoid striking the cab operated by the defendant Burnice Massey and owned by the defendant George Taylor.” Such specification of negligence is sufficient to cover the failure of McLendon to yield the right of way.
Though he alleged more, the plaintiff needed only to prove one of the acts of negligence alleged. Collier v. Pollard, 60 Ga. App. 105, 109 (2 S. E. 2d 821), and citations.
Since the evidence authorized a finding that the defendant McLendon was guilty of at least one of the acts of negligence alleged, and since, except in clear and indisputable cases, of which this is not one, questions of concurring negligence and proximate cause are questions for a jury, the court erred in awarding the nonsuits. See McCurry v. Moffett, 80 Ga. App. 761 (57 S. E. 2d 451).
Judgments reversed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.