# Southland Butane Gas Co. v. Blackwell

> Supreme Court of Georgia · May 10, 1955 · 211 Ga. 665

URL: https://www.frixlaw.com/law-library/cases/9585891

## Case

- **Full name:** Southland Butane Gas Co. v. Blackwell
- **Court:** Supreme Court of Georgia
- **Decided:** May 10, 1955
- **Citations:** 211 Ga. 665; 88 S.E.2d 6; 1955 Ga. LEXIS 423
- **Precedential status:** Published
- **Opinion:** Dissent by Mobley
- **Judges:** Hawkins, Wyatt, Mobley, Head
- **Cited by:** 84 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9585891

## Opinion text

Mobley, Justice,
dissenting. I do not agree with the majority opinion in this case for several reasons. I think the ruling that, “if one voluntarily becomes drunk, and consequently falls down, or lies down, in a state of insensibility on a public highway, so that he is injured by a passing motor vehicle, he cannot recover for injuries so received, even though there may have been contributory negligence on the part of the operator of the motor vehicle,” is not a correct statement of the law. The basis of the court’s ruling is as stated, “paraphrasing the ruling” made in Southwestern Railroad v. Hankerson, 61 Ga. 114 , that: “If one voluntarily becomes drunk, and consequently falls down, or lies down, in a state of insensibility on a railroad track, so that he is injured by a passing train, he cannot recover for injuries so *671 received, even though there may have been contributory negligence on the part of employees of the road.” That is a trespasser case in which the plaintiff was a trespasser upon the tracks of the railroad and of course the only duty owed him as a trespasser was not to wilfully or wantonly injure him. This court holds that the only duty owed the deceased in this case was not to wilfully or wantonly injure him which puts him in the position of a trespasser on the highway. The tracks of a railroad and its right-of-way are the private property of the railroad and a person lying on the tracks at a place other than a public crossing is a trespasser. I can not agree that the deceased in this case was a trespasser on the highway. The highway is public property owned by the people, and for use by the people. The fact that the deceased may not be classified as a pedestrian, motorist, or traveller upon the highway does not make him a trespasser. If there were a statute (which we don’t have) prohibiting a person from sitting or lying down upon the highway it would not make him a trespasser. In view of the above it is clear that the railroad cases cited by the court involving trespassers upon private property of railroads are not authority for the court’s ruling in this case. Judge Pottle in the case of Central of Georgia Ry. Co. v. Pelfry, 11 Ga. App. 119, 127 ( 74 S. E. 854 ), in discussing Southwestern Railroad v. Hankerson, supra, and referring to the ruling quoted from that decision by the court here, stated, "the ruling made in the case is broad — very broad." I agree with Judge Pottle, the ruling is broad — very broad — and too broad even when applied to a trespasser.
I do not agree with the construction of the evidence, to the effect that “a finding was demanded that the deceased was lying drunk in the road, without physical capacity to move himself, in the nighttime, at a point just over the crest of a slight hill, where the lights of an automobile approaching over the hill would not shine on the body of the deceased until it arrived within 12 or 14 feet of the body, and the undisputed evidence of the driver of the truck was that he did not see the deceased until he was within 12 or 14 feet of him, and that he did everything within his power to avoid striking the deceased after discovering his presence in the highway by swerving his truck.”
In my opinion the jury was authorized to draw the inference *672 from the evidence that the driver of the truck could have seen the deceased lying in the road at least 100 feet away and possibly as much as 300 feet away. The driver of the truck testified that he did not see the object in the road until he was within 12 or 14 feet of it and he was the only eyewitness. However, the jury was not required to accept his testimony in this regard when the physical facts as shown by pictures introduced in evidence could have caused the jury to believe that he saw or could have seen the object in the road 100 feet or more away, and furthermore in this connection he testified that his lights were in good condition and were on bright and that on a level he could see 100 feet ahead of him. This testimony shows that the driver was in gross error about the distance he could see or else that lie was committing a gross violation of the statute (Code, Ann. Supp., § 68-316 (a)), requiring motor vehicles to be equipped with two front headlights, “capable of revealing a person, vehicle or object at least 500 feet ahead in the darkness.” The jury was authorized to draw the inference that the driver’s lights complied with the law and that he could see 500 feet on the level but that he was in error in his estimate of 100 feet and that he was equally wrong as to the distance he first saw the object in the road and that instead of being 14 feet it was 70 feet and that he had adequate time to avoid striking the deceased. Under those facts which the jury could have inferred from the evidence, the doctrine of the last clear chance would be applicable and the jury was authorized to find that although the deceased had negligently placed himself in a position of peril, and because of his helplessness was unable to extricate himself from his position of peril, that the defendant after knowing of the deceased’s perilous situation, failed to perform the duty of using reasonable care and competence to avoid harming the deceased. The evidence further shows that the defendant truck driver was familiar with the road and that he drove over the top of the hill at a rate of speed of 35 to 40 miles per hour when he could not see over the top of the hill more than 12 to 14 feet. This would indicate a . wanton disregard of the rights and safety of others who might be on the highway within 12 to 14 feet beyond the top of the hill, from which the jury could have inferred wilful or wanton negligence on the part of the defendant.
*673 I believe the following statement from the opinion from the Court of Appeals in this case, Southland Butane Gas Co. v. Blackwell, 91 Ga. App. 277, 283 ( 85 S. E. 2d 542 ), correctly states the law applicable in this case: “While the plaintiff’s son may have been negligent in béing drunk on the highway, the jury was nevertheless authorized by the evidence to find that this negligence was not the proximate cause of Blackwell’s death. There is only an inference, which the jury was not required to draw, that his intoxication caused him to lie in the road; the deceased may have stumbled and fallen, or may have been searching for his shoes. ‘The duty imposed by law upon all persons to exercise ordinary care to avoid the consequences of another’s negligence does not arise until the negligence of such other is existing, and is either apparent, or the circumstances are such that an ordinarily prudent person would have reason to apprehend its existence. Failure to exercise ordinary care on the part of the person injured, before the negligence complained of is apparent, or should have been reasonably apprehended, will not preclude a recovery, but will authorize the jury to diminish the damages in proportion to the fault attributable to the person injured.’ Western & Atlantic R. Co. v. Ferguson, 113 Ga. 708 (1, 2) ( 39 S. E. 306 , 54 L. R. A. 802); Augusta-Aiken Ry. &c. Corp. v. Jones, 15 Ga. App. 93 ( 82 S. E. 665 ); Atkinson v. Boggs, 16 Ga. App. 738 (3) ( 86 S. E. 62 ); Bach v. Bragg Bros. & Blackwell, Inc., 53 Ga. App. 574 ( 186 S. E. 711 ). At the time of the plaintiff’s son’s negligence in going on the highway, the defendant’s negligence as alleged was not in existence. A corollary of this rule is that, where the injured person’s original negligence in placing himself in danger and his obliviousness thereto are discovered by the defendant who thereafter fails to exercise ordinary care to avoid injuring such person, or where the injured person is first negligent in getting into a position of danger from which he is physically unable to extricate himself by the exercise of ordinary care, and the defendant is negligent in failing to discover the injured person’s dangerous situation while it is still possible for the defendant to avert the injury by the exercise of ordinary care, the original negligence of the injured person does not operate to bar recovery for the injuries caused by the defendant’s negligence. See L. & N. R. Co. v. Plunkett, 6 Ga. App. *674 684 ( 65 S. E. 695 ); Newton v. Seaboard Air-Line Ry., 17 Ga. App. 624 ( 87 S. E. 908 ); Georgia R. & Bkg. Co. v. Dawson, 37 Ga. App. 542 ( 141 S. E. 57 ); Bennett Drug Stores, Inc. v. Mosely, 67 Ga. App. 347 ( 20 S. E. 2d 208 ); Lovett v. Sandersville R. Co., 72 Ga. App. 692 ( 34 S. E. 2d 664 ); Casteel v. Anderson, 89 Ga. App. 68, 71 (2) ( 78 S. E. 2d 831 ). Compare Redding v. Callaway, 74 Ga. App. 855 ( 41 S. E. 2d 804 ). Also see Annotations, 92 A. L. R. 47, 119 A. L. R. 1041, and 171 A. L. R. 365. As stated in Bennett Drug Stores v. Mosely, supra, p. 349 , 'The exception to the rule we have mentioned [that one must exercise the degree of ordinary care which would be exercised by a sober person to avoid the consequence of another’s negligence] is based on the doctrine of last clear chance, or humanitarian doctrine, and is predicated on the theory that there is a duty owed to one who has been so negligent as to render himself incapable of exercising ordinary care to protect himself, after such incapacity is known. This doctrine has been applied in numerous cases where a drunk or disabled person was in a place of danger and where his helplessness or facts indicating helplessness were known to another. Where this situation exists it is such other person’s duty to exercise ordinary care to avoid injuring the unfortunate person even though if it had not been for the previous negligence, such as voluntary drunkenness, he could have put himself in a place of safety by the exercise of ordinary care.’ ”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9585891. Public record. Not legal advice.