Opinion
36260.
DECIDED SEPTEMBER 5, 1956.
Tort; automobile collision. Before Judge Tye. Fulton Superior Court. April 6, 1956.
Moise, Post Gardner, R. Emerson Gardner, Hugh E. Wright, for plaintiff in error.
A. Mims Wilkinson, Jr., Bruce B. Edwards, contra.
The trial court did not err in overruling the general demurrer to the petition interposed by the defendant Pitts.
DECIDED SEPTEMBER 5, 1956.
Kenneth Charles Farlow brought an action against Joe H. Pitts and Barbara B. Whigham in which he sought to recover for certain described personal injuries alleged to have been received as a result of an automobile collision between the car in which he was riding and the defendant Whigham's car. In addition to the above the petition alleged in substance that the plaintiff was a passenger in an automobile being driven in a northerly direction on the north leg of the expressway in the City of Atlanta, that the defendant Pitts' automobile was stopped in the left lane of the dual lanes used for north bound traffic, that the defendant Whigham's automobile was stopped directly behind the defendant Pitts' automobile, that the defendants' automobiles were not stopped because of any traffic on the expressway, that the defendant Pitts' automobile was completely abandoned, that this was not apparent to the plaintiff because of poor visibility and darkness caused by clouds covering and overcasting the entire sky and obscuring the sun, and rain, and other automobiles between the parked automobiles of the defendants and the automobile in which the plaintiff was riding, and that for the same reasons the driver of the automobile in which the plaintiff was riding could not see the parked automobiles in time to avoid the collision. Various acts of negligence were charged against the defendants with respect to their parked automobiles. The defendant Pitts filed a general demurrer to the petition which was overruled and it is to this judgment that he excepts.
It is well settled law in Georgia that the negligence of a driver of an automobile can not be imputed to a passenger who has no control over the movements of the driver in operating the automobile. It is just as well settled that where the injuries of the passenger are caused solely by the negligence of the driver of the automobile in which he is riding, the passenger cannot recover from a third party, and that, "Questions as to diligence and negligence, including contributory negligence and what negligence constitutes the proximate cause of the injury complained of, are questions peculiarly for the jury, such as this court will decline to solve on demurrer except in palpably clear, plain, and indisputable cases." Tybee Amusement Co. v. Odum, 51 Ga. App. 1 (3) ( 179 S.E. 415).
The defendant Pitts cites in his brief, for authority that the judgment of the trial court should be reversed, cases such as Brinson v. Davis, 32 Ga. App. 37 ( 122 S.E. 643), where the driver of the automobile in which the plaintiff was riding knowingly drove onto a railroad crossing and crashed into the side of a parked train while blinded by are lights from the railroad, State Highway Department v. Stephens, 46 Ga. App. 359 (2) ( 167 S.E. 788), where the driver saw the parked truck but when he realized that it was not moving it was too late to stop without a collision, Reid v. Southern Ry. Co., 52 Ga. App. 508 ( 183 S.E. 849), where a collision took place in a cloud of smoke and it was alleged that the driver could have seen such smoke when he was 200 yards from it, and Stephens v. Tatum, 92 Ga. App. 256 ( 88 S.E.2d 456), where the collision took place in a dust cloud and it was alleged that the driver saw such dust cloud when he was 200 yards away from it. These cases do not fit the facts as alleged in the present petition before this court. The facts, as alleged, do not make it palpably clear that the negligence of the driver of the automobile in which the plaintiff was riding was the sole proximate cause of the collision and it must be held that the trial court did not err in overruling the general demurrer interposed by the defendant Pitts, since it is for a jury to determine what was the proximate cause of the plaintiff's alleged injuries. See Adams v. Jackson, 45 Ga. App. 860 (1) ( 166 S.E. 258); Callahan v. Cofield, 61 Ga. App. 780 ( 7 S.E.2d 592); Brady v. Fruehauf Trailer Co., 63 Ga. App. 50 ( 10 S.E.2d 133); Tallman v. Green, 74 Ga. App. 731 ( 41 S.E.2d 339); and Atlantic Coast Line R. Co. v. Coxwell, 93 Ga. App. 159 ( 91 S.E.2d 135).
Judgment affirmed. Felton, C. J., and Quillian, J., concur.