The evidence did not demand a verdict for the plaintiff or for either of the defendants, and, in view of the errors of law appearing, it was error to deny the defendants' motions for a new trial.

DECIDED JULY 16, 1958.

Talmadge Rentz filed a suit against Coy Rentz, his father, and Henry Reynolds for damages arising out of a collision between an automobile driven by Henry Reynolds and a farm tractor driven by the plaintiff.

The petition alleged in part that: on January 22, 1955, the plaintiff and the defendant, Coy Rentz, left Coy Rentz's house in a 3/4 ton pickup truck, and started northeast on State Highway No. 144; Coy Rentz was driving and after proceeding about 200 feet the truck stopped running and they could not get it started; realizing that the stalled truck created a hazard on the highway, the defendant Rentz told the plaintiff to go and get the defendant's tractor and pull him off the road; at this time it was dusk and the lights on the truck were shining; at a time when there was no traffic approaching from the southwest the plaintiff backed the tractor, which had a trailer attached, up to the truck and hitched them together; the plaintiff then began pulling the truck backward in the direction of the defendant's house; the defendant Rentz was in the truck steering as it was pulled by the tractor; the defendant Rentz negligently guided the front end of the truck across the center line of the highway into the left lane; the defendant Reynolds, traveling southwest at a speed in excess of 55 miles per hour, ran into the left side of the trailer which was hitched to the tractor; the plaintiff was thrown from the tractor receiving serious injuries; the approach to the collision from which the defendant Reynolds was traveling was straight and level for one fourth mile; an effort was made to warn defendant Reynolds by the waving of hands and a hat; Reynolds negligently failed to heed the warning; the defendant Reynolds negligently ran off the pavement to the right and then negligently turned back to the left across the center line and ran into the tractor trailer; the defendant Reynolds was negligent in exceeding the speed limit and in failing to heed the warning to stop.

The defendant Reynolds filed a separate answer in which he set up the negligence of the defendant Rentz and for further answer alleged in part that: this defendant avers that any injuries sustained by the plaintiff did not result from any negligence upon the part of this defendant; in this connection defendant avers that he was proceeding along his proper side of the highway at a reasonable and lawful rate of speed; that he saw the lights of what appeared to be an automobile coming to meet him but when he got almost to the point of meeting such vehicle he suddenly saw that this vehicle was about the center of the highway and that there were dark objects behind blocking defendant's pathway; defendant cut suddenly to his right onto the right shoulder and came in collision with an unlighted trailer and tractor behind the truck of the defendant, Coy Rentz; this defendant avers that not only was Coy Rentz negligent in handling the truck but that the plaintiff, Rentz, was negligent in operating the tractor and trailer attached to the truck so as to block defendant Reynolds' pathway without lights, and that both the plaintiff and the defendant, Coy Rentz, created an emergency from which this defendant could not possibly extricate himself and prevent personal injuries to himself and his family in his car; that the sole cause of any injuries sustained by the plaintiff was the negligence of the plaintiff himself and the negligence of the defendant, Coy Rentz; that the plaintiff by the exercise of ordinary care could have avoided the consequences of any negligence alleged against this defendant although this defendant denies any negligence on his part; that the plaintiff was guilty of negligence which equaled or exceeded any negligence against this defendant, although negligence on his part is denied by this defendant.

The defendant Rentz filed an answer in which he denied any negligence and for further answer alleged in part that: any injuries received by the plaintiff were due to his failure to exercise ordinary care for his own safety and the negligence of the defendant Reynolds.

Upon the trial of the case the plaintiff testified in part that: the residence of his father, defendant Rentz, is located on the southwest side of the highway; late in the afternoon of January 23, 1955, he and defendant Rentz started from the residence in the truck traveling northeast; they had gone only 200 feet when the motor of the truck stopped and they were unable to start it again; the plaintiff then went back to defendant Rentz' residence and got a farm tractor which had a trailer attached; the plaintiff returned with the tractor and backed it up to the truck; Edward Rogers, a neighbor who had arrived upon the scene, attached a chain from the trailer to the rear of the truck; it was dark and the truck lights were shining; there were no lights on the tractor or trailer; the plaintiff began to pull the truck backwards down the road in an effort to return it to the defendant Rentz' house; defendant Rentz was in the truck steering it; after he pulled the truck 20 or 30 feet defendant Rentz told him to stop, which he did; he noticed that defendant Rentz had allowed the front end of the truck to get over the center line, but the tractor and trailer did not cross the center line; Rogers tried to flag the oncoming automobile down but was unable to do so; the defendant Reynolds drove his automobile around the truck and then cut back across the center line and struck the trailer which was attached to the tractor.

The defendant Rentz, testified to substantially the same facts as the plaintiff and he also testified in part that: the defendant Reynolds was traveling at a high rate of speed; that Rogers first tried to wave the defendant Reynolds down by standing in front of the left fender of the truck, but when this seemed to fail he went further up the road toward the oncoming automobile, standing in the light of the truck headlights; when the automobile did not stop Rogers ran for safety.

The defendant Reynolds testified that the collision took place substantially as he alleged in his answer.

The front end of the truck which was being towed backward swung over on the north side of the road just a minute or two before the collision, but the larger part of it remained on the south or wrong side of the road until contact actually took place.

There were other witnesses but their testimony would add little to that which has already been stated and for that reason it will not be set out in this opinion.

At the conclusion of the evidence the defendants made motions for directed verdicts which were denied.

The jury returned a verdict for the plaintiff and the defendants filed motions for a new trial. The defendants also filed motions for judgments notwithstanding the verdicts. The trial judge denied the motions and it is to these rulings exception is taken.

NICHOLS, Judge.

1. It may be seen from the statement of facts that a jury would have been authorized to find the defendant Reynolds guilty of negligence in speeding down a straight road toward the lighted truck which was partly in his path, in failing to slow down when the witness signaled to him, first from in front of the left front fender of the truck, and then after he went farther up the road toward Reynolds, and in failing to control his automobile so that it crossed over the center line and collided with the plaintiff's trailer. They were also authorized to find the defendant Rentz guilty of negligence in steering the truck so that it crossed over the center line into Reynolds' traffic lane, and in leaving his bright lights on in such a way as to blind an oncoming automobile.

As to the plaintiff, the testimony shows that he was on an "ordinary farm tractor" which had no lights or lighting system on it. Failure to have lights on implements of farm husbandry is not negligence per se (Code, Ann., § 68-1701 (c); Southeastern Liquid Fertilizer Co. v. Mock, 92 Ga. App. 270, 88 S.E.2d 531); yet its use under the circumstances might have been found by the jury to have been negligence as a matter of fact. A jury question was also presented as to whether the plaintiff, when he saw that Reynolds did not heed the signal by either stopping or slowing up, was guilty of lack of ordinary care for his own safety in not jumping off the stationary tractor in anticipation of a collision and removing himself to a place of safety. However, the plaintiff under this evidence cannot be charged with the negligence of his father in steering the truck into the path of oncoming traffic, and for this reason any negligence of his in driving the tractor (which was facing in the opposite direction from the stalled truck, and was pulling it) on the plaintiff's left side of the road and thus in the wrong direction, is not negligence as to these defendants. The tractor and trailer remained out of the lane of traffic of the oncoming Reynolds car, and thus it did not matter to Reynolds whether it was proceeding toward him or away from him, since he could not have hit it without crossing over the center line. "An act prohibited by a penal statute, and which might be negligence as a matter of law, is not negligence unless its commission is in violation of some duty owing, under the circumstances, by the person committing the act to another person, and is capable of having a causal connection with the injury inflicted." Etheridge v. Guest, 63 Ga. App. 637, 640 ( 12 S.E.2d 483). The motion for a judgment notwithstanding the verdict, and also the general grounds of the motion for a new trial, can have merit only if this evidence demands as a matter of law a finding that the plaintiff was so lacking in ordinary care for his own safety as to have by his acts been the preponderating proximate cause of his injuries, or else that he failed to exercise ordinary care after the negligence of the defendants became known to him. The rule as stated in Willis v. Jones, 89 Ga. App. 824, 825 ( 81 S.E.2d 517), and the numerous cases there cited, is as follows: "We are of the opinion that the true comparative-negligence rule is that, if a plaintiff and defendant are both guilty of negligence which concurs proximately to bring about an injury to a plaintiff, if the defendant's negligence is sufficient to predicate an action on, for example, ordinary negligence, and if the plaintiff is negligent, even if his negligence amounts to a failure to exercise ordinary care, and the plaintiff's negligence is not equal to or greater than that of the defendant, the plaintiff would still be entitled to recover, provided the plaintiff could not have avoided the consequences of the defendant's negligence by the exercise of ordinary care after it was actually discovered or should have been discovered by the exercise of ordinary care. The mere fact that the plaintiff might have been guilty of ordinary negligence before the duty arose to discover and avoid the defendant's negligence would not in and of itself preclude a recovery by the plaintiff." Had the plaintiff been towing the truck on his wrong side of the road, and in the traffic lane in which the defendant Reynolds was properly proceeding, we would not hesitate to hold as a matter of law that his negligence was the preponderating proximate cause of his injuries. This, however, he was not doing. Accordingly, from all the evidence, the question of what negligence, as well as whose negligence, preponderated in causing the plaintiff's injuries, became one peculiarly for jury determination. It was accordingly not error to deny the motion for judgment notwithstanding the verdict.

(b) For the same reasons, the general grounds of the motion for a new trial are without merit.

(c) Applying the rule laid down in Willis v. Jones, 89 Ga. App. 824, supra, those parts of special ground 2 of the defendant Rentz' motion for new trial, and special ground 5 of Reynolds' motion, which complain that the court restricted the charge that the plaintiff could not recover if he was not in the exercise of ordinary care to circumstances after the defendants' negligence became apparent or should have become apparent to the plaintiff, instead of extending it to situations before the defendants' negligence could be observed, are without merit.

2. In so far as special grounds 2 and 5, supra, and also special grounds 3 and 4 of the Rentz motion and 6 of the Reynolds motion, complain of inaccuracies in the charge on comparative negligence, the exceptions are well taken. Nowhere did the court charge that the plaintiff could not recover if his negligence was the preponderating proximate cause of his injuries. "A charge on the subject of comparative negligence, which is not qualified by a statement of the principle of law that if the plaintiff's negligence is equal to or greater than the defendant's, the plaintiff can not recover, is erroneous. Mitchell v. Mullen, 45 Ga. App. 282 (8) ( 164 S.E. 276); Brown v. Meikleham, 34 Ga. App. 207 ( 128 S.E. 918.)" Shackleford v. Ridley, 71 Ga. App. 568 (1) ( 31 S.E.2d 429). This being a case which would authorize a finding of at least some degree of negligence on the part of all the parties involved, it would have been impossible for the jury to arrive at a proper verdict without correct instructions on this issue. Accordingly, the failure to charge properly on this issue constitutes reversible error.

3. Special grounds 5 and 7 of the respective motions for new trial complain, as to each defendant, that the trial court erred in failing to charge that if the proximate cause of the plaintiff's injuries was his own negligence combined with the negligence of the other defendant, then the complaining defendant would not be liable. From the court's charge, construed as a whole, there is very real danger that the jury never gave consideration to this aspect of the case, and that they might have considered the defendants' acts of negligence as joint, which they were not. Nowhere did the court point out that the proximate cause of the injuries might have been the negligence of one defendant, concurring with that of the plaintiff, as, for example, whether the act of Reynolds in crossing over the center line resulted from an emergency so that it would not have been imputable to him as negligence. We have already seen that there was a question of fact, under conflicting evidence, as to whether his failure to slow down or stop when signaled constituted negligence. The rule of law is of course obvious that a verdict should not be returned against one not guilty of negligence. "But where the evidence plainly and manifestly shows that the injury was caused by the intervening efficient act of the third person or the conjunctive acts or omissions of such person and the plaintiff, the defendant can not be held responsible for having produced the injury, and the question is then one of law for determination by the court." Georgia Power Co. v. Kinard, 47 Ga. App. 483, 486 ( 170 S.E. 688). It follows that where a jury question is presented as to whether the conjunctive acts or omissions of another defendant and the plaintiff constituted the proximate cause of the injury so as to relieve the complaining defendant, the jury should be so instructed. These grounds constitute error.

4. Damages resulting from loss of earnings are to be arrived at from the evidence, and are not, like pain and suffering, to be determined in the enlightened conscience of impartial jurors. As the case is being reversed on other grounds, it is not necessary to consider whether the wording of this portion of the charge would have confused the jury into thinking the same rule applied to both items of damages, since this precise wording of the charge is unlikely to recur.

The trial judge did not err in denying the motion for a judgment notwithstanding the verdict. He erred, however, in denying the alternate motion for a new trial.

Judgment reversed. Felton, C. J., Gardner, P. J., Townsend, and Carlisle, JJ., concur. Quillian, J., concurs in the judgment of reversal but dissents from the ruling in the first division of the opinion.