Blake v. Continental Southeastern Lines, Inc.

Pope, Judge. This is the second appearance of this case in this court. In Blake v. Continental Southeastern Lines, 161 Ga. App. 869 (289 SE2d 551) (1982), following a trial and the granting of the appellee Continental Southeastern Lines, Inc.’s motion for directed verdict and the denial of the appellant Blake’s similar motion, this court held in Division 2 that the record was devoid of evidence of wilful and wanton misconduct on the part of the appellee; hence, the trial court did not [719] err in directing a verdict in favor of appellee on that issue. In Division 3 we held that the trial court did not err in denying appellant’s motion for directed verdict as the evidence failed to demand a finding that the collision was not “in whole or in part, caused by the negligence of the deceased [appellant’s decedent in this wrongful death case.]” In Division 1, however, we held that appellee “had a duty to the deceased to comply with all rules and regulations with respect to its use of a controlled-access highway . . . [and a question of fact remained as to whether appellee] breached that duty, and whether that breach was the proximate cause of the death of appellant’s husband____” The judgment of the trial court in directing the verdict in favor of appellee on the issue of negligence was, therefore, reversed. In our original opinion we noted that appellant contended that appellee had negligently operated the bus, listing seven specifications of negligence. We limited our discussion to one of those allegations, “negligence in the improper utilization of the paved shoulder (a/k/a emergency lane) of a controlled-access highway,” holding that the remaining allegations of negligence were “either not meritorious or not applicable to the circumstances in this case.” Those seven specific allegations of negligence were (1) failing to maintain a proper lookout for other vehicles; (2) failing to yield the right-of-way to other vehicles in entering from the emergency lane to return to the right lane of the two northbound lanes of traffic; (3) stopping, standing or parking and returning to the controlled-access highway from the emergency lane when such movement could not be made with reasonable safety in violation of OCGA § 40-6-122 (Code Ann. § 68A-603); (4) failing to give proper and adequate signal of an intention to change lanes from the emergency lane to the right-hand traffic lane in violation of OCGA § 40-6-123 (Code Ann. § 68A-604), that is, giving a signal of intention to change lanes “continuously for a time sufficient to alert the driver of a vehicle proceeding from the rear in the same direction”; (5) utilizing the emergency lane improperly; (6) operating the bus at such a slow rate of speed as to impede normal and reasonable movement of traffic in violation of OCGA § 40-6-184 (a) (Code Ann. § 68A-805); and (7) operating the bus at a rate of speed lower than the minimum speed limit established for this controlled-access highway in violation of OCGA § 40-6-184 (b) (Code Ann. § 68A-805). On the return of the remittitur from this court to the trial court, appellee filed a motion to define the scope of the trial in accordance with the ruling of this court, and appellant obtained leave to file an amended complaint. In this amended complaint appellant contends appellee failed to exercise ordinary care in the operation, management and control of the motor vehicle in compliance with all [720] rules and regulations with respect to the use of the road. More specifically, appellant contends that appellee, by and through its duly authorized agent and servant, disregarded the rules of the road in one or more of the following respects: (1) negligently and carelessly failing to anticipate the presence of other travelers on the highway and to have due regard for their rights to the use thereof; (2) negligently stopping and parking the bus in the emergency lane in violation of OCGA § 40-6-203 (a) (1) (I) (Code Ann. § 68A-1003); (3) negligently starting the bus which was stopped, standing or parked in the emergency lane when such movement could not be made with reasonable safety in violation of OCGA § 40-6-122 (Code Ann. § 68A-603); (4) negligently failing to yield the right-of-way to the decedent approaching upon the roadway before entering from the emergency lane in violation of OCGA § 40-6-73 (Code Ann. § 68A-404); and (5) negligently operating the bus at a rate of speed lower than the minimum speed limit established for said highway in violation of OCGA § 40-6-184 (b) (Code Ann. § 68A-805), all of which were the direct and proximate cause of the death of the decedent. Appellee moved for partial summary judgment as to all issues of negligence raised by appellant’s amended complaint except as set forth in our opinion in the first appearance of this case on appeal. In support of its motion, appellee introduced the transcript of proceedings and documentary evidence of the trial of this case. No other evidence was introduced by either party. Based upon this evidence, the trial court granted appellee’s motion. As noted above, we limited our discussion in the first appeal to one of appellant’s allegations of negligence — “negligence in the improper utilization of the paved shoulder (a/k/a emergency lane) of a controlled-access highway.” Based upon our review of the record, we held that appellant’s remaining allegations of negligence were either without merit or not applicable to the circumstances in the case. This became the law of the case. OCGA § 9-11-60 (h) (Code Ann. § 81A-160); see Wallace v. Lessard, 158 Ga. App. 772 (1) (282 SE2d 153), affd. 248 Ga. 575 (285 SE2d 14) (1981); Worley v. Travelers Indem. Co., 124 Ga. App. 64 (183 SE2d 91) (1971). Of the five allegations of negligence in appellant’s amended complaint, only two present an issue for jury resolution — (1) failing to anticipate others on the highway and (2) negligent stopping in the emergency lane (OCGA § 40-6-203 (a)(l)(I) (Code Ann. § 68A-1003)). As to these two allegations, the second is simply an example of the principle enunciated in the first. See Blake v. Continental Southeastern Lines, supra at (1). As to the remaining allegations, we find that they are merely the same arguments raised in the original complaint and are not [721] supported by the evidence of record in this case. (1) Negligent starting of the bus (OCGA § 40-6-122 (Code Ann. § 68A-603)): the evidence discloses no negligent action on the part of the bus driver; he followed all necessary steps before starting back onto the roadway. See generally 60A CJS, Motor Vehicles, § 345. (2) Failing to yield right of way (OCGA § 40-6-73 (Code Ann. § 68A-404)): all the evidence discloses that the bus was already fully on the roadway before either the eyewitness or the deceased saw the bus; thus, this section is inapplicable. See generally 60A CJS, Motor Vehicles, § 362(1); see also 60A CJS, Motor Vehicles, § 347(b). (3) Operating the vehicle at a speed below the minimum (OCGA § 40-6-184 (b) (Code Ann. § 68A-805)): notwithstanding the expert witness’ testimony that the minimum speed should be attained in the emergency lane before re-entering the roadway, the law in this state is that the minimum “does not apply to a vehicle entering the highway from the emergency strip, until there has been reasonable opportunity to attain this speed. Thomas v. Barnett, 126 Ga. App. 89 (190 SE2d 90) [(1972)].”Barnett v. Thomas, 126 Ga. App. 587, 593 (191 SE2d 450) (1972). All the evidence shows that the bus driver had not had such an opportunity. Decided September 30, 1983 Rehearing denied November 3, 1983 Bruce E. Pashley, Scott J. Mers, for appellant. Edward S. White, for appellee. For the reasons set forth here, we affirm the judgment of the trial court. See Genins v. Geiger, 149 Ga. App. 526 (254 SE2d 913), cert. den., 444 U. S. 991 (1979). Judgment affirmed. Deen, P. J., Banke, Birdsong and Sognier, JJ, concur. Shulman, C. J, Quillian, P. J, McMurray, P. J., and Car ley, J., dissent.