Opinion
42580.
ARGUED FEBRUARY 6, 1967.
DECIDED FEBRUARY 17, 1967.
Action for damages. Fulton Superior Court. Before Judge Moore.
Neil L. Heimanson, for appellant.
Peek, Whaley Blackburn, J. Corbett Peek, Jr., for appellee.
1. The motion to dismiss the appeal is denied.
2. The petition stated a cause of action good as against the general demurrer.
ARGUED FEBRUARY 6, 1967 — DECIDED FEBRUARY 17, 1967.
Thomas S. Piller brought an action against Hanger Cab Company, Inc. for damages for personal injuries sustained as a result of the alleged negligence of the driver of one of the defendant's taxicabs, in which the plaintiff was a paying passenger. The material allegations of the petition are substantially as follows: At approximately 7 p. m., December 13, 1963, the taxicab, in the rear seat of which the plaintiff was riding, was proceeding northerly on Stewart Avenue in the City of Hapeville, Fulton County, Georgia. At the time involved it was dark and rainy and the streets were wet and slippery. As the taxicab proceeded through the intersection with North Avenue, it was traveling at a speed of approximately 40-45 mph, being in excess of the posted speed limit of 35 mph and of that speed reasonable and prudent under the circumstances. As the taxicab proceeded through said intersection, following a Ford Falcon automobile at a distance of about 20 feet, a Ford Thunderbird automobile turned left onto Stewart Avenue from North Avenue and followed the taxicab in a northerly direction. As the Falcon "prepared to turn left" into Cofield Drive, which was about four blocks north of the intersection of North and Stewart Avenues, the taxicab, because of its speed and closeness to the Falcon, was forced to slam on the brakes in a sudden attempt to stop, thereby creating a dangerous and hazardous situation. By reason of the sudden stop, the driver of the Thunderbird also applied his brakes, but, due to the said conditions, the Thunderbird, which was moving faster than the taxicab at that point, collided with the rear end of the taxicab, the Falcon having completed its left turn. Stewart Avenue is a two-lane, two-way street in the places described. The plaintiff's injuries were proximately caused by the following particulars of the defendant's alleged negligence: (a) Failure to exercise extraordinary diligence in the protection of the plaintiff passenger ( Code § 18-204); (b) Operation of its vehicle at a speed greater than was reasonable and prudent under existing circumstances and conditions, to wit, in excess of 30 mph; (c) Failure to guide and steer its vehicle so as to avoid the collision; (d) Failure to exercise proper control of its vehicle; (e) Failure to apply its brakes in such a manner as to avoid creating a dangerous and hazardous condition; (f) Failure to keep a proper lookout ahead so as to detect the proximity of danger in order to continue upon its path without danger; (g) Following the leading vehicle too closely considering the conditions of speed, traffic, darkness and wet streets ( Code Ann. § 68-1641 (a)); (h) Driving at excessive speed for existing conditions ( Code Ann. § 68-1626 (a)); (i) Exceeding posted speed limit ( Code Ann. § 68-1626 (b, 1)); (j) Failure to use ordinary care under the circumstances; (k) Failure to use all extraordinary and diligent care under the circumstances. The plaintiff appeals from the judgment of the court sustaining the defendant's general demurrer to the petition. The appellee filed a motion to dismiss the appeal on the ground of an alleged untimely filing of the notice of appeal.
1. Where the trial court enters an order sustaining a general demurrer and granting the plaintiff 30 days within which to amend and dismissing the petition in default of plaintiff's amendment, and plaintiff does not amend, the plaintiff has 30 days from the expiration of the period granted for amendment to present a notice of appeal. Rochester Capital Leasing Corp. v. Christian, 109 Ga. App. 818 (1) ( 137 S.E.2d 518). The motion to dismiss the appeal is denied.
2. "While the general rule is that if, subsequently to an original wrongful or negligent act, a new cause has intervened, of itself sufficient to stand as the cause of the misfortune, the former must be considered as too remote, still if the character of the intervening act claimed to break the connection between the original wrongful act and the subsequent injury was such that its probable or natural consequences could reasonably have been anticipated, apprehended, or foreseen by the original wrongdoer, the causal connection is not broken, and the original wrongdoer is responsible for all of the consequences resulting from the intervening act." Southern R. Co. v. Webb, 116 Ga. 152 (1) ( 42 S.E. 395, 59 LRA 109); Blakely v. Johnson, 220 Ga. 572, 574 ( 140 S.E.2d 857). The fact that it is alleged that the defendant's driver was able to avoid hitting the Falcon ahead of him in spite of his alleged negligence in speeding and following too closely on a wet street, etc., does not negative the possibility that his negligence might have been at least a concurrent proximate cause of the collision. Although the driver of the Thunderbird following the taxicab may have been negligent in failing to avoid the consequences of the defendant's negligence after the danger was discoverable in the exercise of ordinary care ( Martin v. Waltman, 82 Ga. App. 375, 383 ( 61 S.E.2d 214)), it can not be said as a matter of law that such intervening negligence could not have been reasonably anticipated, apprehended, or foreseen by the defendant's driver. "One who himself violates a statute cannot rely upon the presumption that others in like position will not disobey the law." Ga. Power Co. v. Blum, 80 Ga. App. 618 (3 b) ( 57 S.E.2d 18); Pfeifer v. Yellow Cab Co., 88 Ga. App. 221, 225 ( 76 S.E.2d 225) and cit. The defendant driver was charged with the knowledge that a vehicle was following him and that the stopping distance on the wet street at the alleged unlawful speed was greater than on a dry street at a lawful speed.
"A carrier of passengers must exercise extraordinary diligence to protect the lives and persons of his passengers." (Emphasis supplied.) Code § 18-204. "When a passenger is injured, a legal presumption that the carrier failed to exercise extraordinary care arises in his favor. The carrier can, of course, rebut this presumption by making it appear that extraordinary care and diligence were exercised. This is a jury question. Ga. R. c. Co. v. Murphy, 28 Ga. App. 173 ( 110 S.E. 680). See also, in this connection, East Tennessee c. R. Co. v. Miller, 95 Ga. 738 ( 22 S.E. 660)." (Emphasis supplied.) Eason v. Crews, 88 Ga. App. 602, 613 ( 77 S.E.2d 245); Wilson v. Ray, 64 Ga. App. 540, 543 ( 13 S.E.2d 848). See also cases annotated under Code § 18-204, catchword "Jury."
The fact that the petition shows that the negligence of the driver of the automobile following the taxicab may have been equal to or greater than that of the defendant does not make the action against the defendant subject to the general demurrer. Where two concurrent causes naturally operate in causing an injury, there may be a recovery against both or either of the actors, even though the degree of care owed by them to the injured person be different. Reid v. Modern Roofing c. Works, 89 Ga. App. 285, 286 ( 79 S.E.2d 31); Wilson v. Ray, supra, p. 543. Although the negligent acts of the two drivers were separated by a short interval of time, the evidence might show that the second act was virtually inevitable under the alleged circumstances of speed, proximity and the wet street.
The petition alleged sufficient negligence on the part of the defendant to constitute at least a concurring proximate cause of the plaintiff's injuries. The petition raises too many issues of fact — such as the speed and proximity of the vehicles, the signal, if any, given by the leading vehicle as it "prepared to turn left," and the relative negligence, if any, of the defendant and the driver of the following vehicle — to hold as a matter of law that the defendant was exercising extraordinary diligence to protect the plaintiff passenger or that the sole proximate cause of the collision was the intervening negligence of the driver following the taxicab.
The court erred in its judgment sustaining the general demurrer to the petition.
Judgment reversed. Hall and Eberhardt, JJ., concur.