Opinion
31434.
DECIDED JANUARY 30, 1947.
Action for damages; from Fulton Superior Court — Judge Hendrix. September 10, 1946.
E. Harold Sheats, Andrews Nall, for plaintiff.
Powell, Goldstein, Frazer Murphy, Dunaway, Riley Howard, Joe H. Brewer, for defendants.
The court erred in sustaining the general demurrers of the defendants Green and Lane to the petition, since it was properly a question for the jury, to be determined from the evidence, whether those two defendants and the other defendant (Lunsford) were guilty of negligence in any of the particulars charged; and, if so, whether the concurrent acts of negligence of all of them, or the separate acts of either of them, constituted the proximate cause of the injuries sued for.
DECIDED JANUARY 30, 1947.
O. J. Tallman sued J. P. Lunsford, E. J. Green, and Clarence A. Lane for damages resulting from personal injuries sustained by him. His petition alleged that on January 21, 1946, at about 7:30 p. m., he was riding as a guest in the automobile of the defendant Lunsford and had no control over its operation; that Lunsford was driving the car, on Central Avenue, within the City of East Point, Georgia, at a rate of speed of 45 to 50 miles an hour, and was not keeping a lookout ahead, although it was very foggy and misty and the vision ahead of the car was materially obstructed thereby; that on said date, at about 7:15 p. m., the defendant Lane was driving a truck, owned by the defendant Green, on said Central Avenue in said city; that Lane parked the truck on said avenue in such a way that its left rear part extended to within 3 1/2 feet of the center line of the avenue; that no light visible for a distance of 100 feet to the rear of the truck was left burning on the truck, and no other lights were on the rear thereof to warn other traffic of the presence of the truck; that as the defendant Lunsford approached the truck, he did not apply his brakes or reduce his speed until he was so close to it that he could not avoid hitting it, and he ran into the parked truck, thereby inflicting on the plaintiff the personal injuries sued for; that, at the time referred to, the defendant Lane was the agent and employee of the defendant Green, and was acting within the scope of his employment and in and about his master's business; that the three defendants jointly and concurrently injured the plaintiff; that the truck driven by Lane was the property of Green and used by Green in his business; that, at the time and place referred to, ordinances of the City of East Point were in force, providing that no automobile should be operated on its streets at a rate of speed greater than 25 miles an hour, and that any person parking an automobile on the streets shall leave the lights in front burning dimly and a red light on the rear of the automobile; that the defendant Lunsford was grossly negligent, and negligent per se, in operating his automobile in excess of 25 miles an hour in violation of said ordinances of said city; that he was also grossly negligent in failing to keep a lookout ahead so as to detect the presence of parked automobiles on the street, in driving the automobile at the reckless and grossly negligent rate of speed of 45 or 50 miles an hour, within the corporate limits of said city, on a foggy night when his vision was impaired by said weather conditions, and in failing to apply his brakes and bring his car to a stop before striking the truck; that the defendants Green and Lane were negligent, by and through Lane, in the following particulars: (a) In parking said truck on the streets of said city without leaving a red light on the truck's rear in violation of the ordinance of the city hereinbefore set forth, which was negligence per se; (b) In parking the truck on said street without displaying a red light, on the rear of the truck, which was visible for 100 feet or more, in violation of a State law, which was negligence per se; and in failing to remove the truck from the street, or to park it adjacent to and as close as possible to the curb, and in failing to put out flares or to give other warning of the truck's presence on the street. The petition further alleged that the aforesaid acts of negligence of the three defendants "operated to produce and were the proximate cause" of the injuries sued for, and that the plaintiff was wholly free from any negligence contributing to his injuries.
The defendants Green and Lane filed separate general demurrers to the petition, and ground 1 of each demurrer alleged that "the petition fails to state a cause of action against this defendant." The court sustained that ground of each demurrer and dismissed the petition as to Green and Lane; and that judgment is assigned as error.
Counsel for Green and Lane state in their brief that the sustaining of the general demurrers was not based "upon the theory that there can be but one proximate cause of an injury, nor on the theory that the negligence of the host [Lunsford] was attributable to the guest [Tallman], but on the theory that, as a matter of law, the act of negligence of defendant Lunsford was the superseding cause of the injury [sued for], beyond which the court will not look to determine liability." In Adams v. Jackson, 45 Ga. App. 860 ( 166 S.E. 258), where the facts are almost similar to those of the instant case, the headnotes read as follows:
"1. Where the automobile in which plaintiff's son was riding along a public highway was being driven at an excessive rate of speed down hill on a winding road and around a curve on a dark night, and collided with a truck parked on the side of the road, with about four feet of the truck projecting into the highway and with no rear light burning, which was visible for one hundred feet to any one approaching from the rear, killing the plaintiff's son, the act of the driver of the automobile in so driving was not necessarily the proximate cause of the death. Nixon v. Williams, 25 Ga. App. 594 ( 103 S.E. 880); City Council of Augusta v. Hudson, 94 Ga. 135 ( 21 S.E. 289); Letton v. Kitchen, 166 Ga. 121 (2) ( 142 S.E. 658). Failure to display a proper tail light on a motor-vehicle parked along a public highway on a dark night is negligence per se, and where it is the proximate cause of an injury, the owner of the vehicle is liable therefor. 42 C. J. 1014, § 746; Murphy v. Hawthorne, 117 Ore. 319, 322 ( 244 P. 79, 44 A.L.R. 1397); Ga. L. 1927, p. 235; Sheppard v. Johnson, 11 Ga. App. 280 ( 75 S.E. 348); Davies v. West Lumber Co., 32 Ga. App. 460 ( 123 S.E. 757); Fuller v. State, 33 Ga. App. 372 ( 126 S.E. 302).
"2. It is a well settled principle of law that where concurrent causes operate directly in bringing about an injury, there can be a recovery against one or all of the responsible parties. The mere fact that the injury would not have been sustained had only one of the acts of negligence occurred will not of itself operate to define and limit the other act as constituting the proximate cause; for if all acts of negligence contributed directly and concurrently in bringing about the injury, they together constitute the proximate cause. Barrett v. Savannah, 9 Ga. App. 642 ( 72 S.E. 49); Bonner v. Standard Oil Co., 22 Ga. App. 532 ( 96 S.E. 573); Georgia Ry. c. Co. v. Ryan, 24 Ga. App. 288 ( 100 S.E. 713); Spencer v. Peace, 42 Ga. App. 516 (2) ( 156 S.E. 729).
"3. What is the proximate cause of an injury is generally a question of fact, and is therefore one for determination by a jury, except where the facts are such that they will support only the reasonable inference that the negligence charged did not appreciably contribute to the injury complained of. Georgia Ry. c. Co. v. Ryan, and Letton v. Kitchen, supra.
"4. The court did not err in overruling the general demurrer of the defendant Adams, since it was properly a question for the jury, to be determined from the evidence, whether the defendants were guilty of negligence in any of the particulars charged, and, if so, whether the concurrent acts of negligence of all of them, or the separate acts of either of them, constituted the proximate cause of the injury."
See also 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).
The cases cited in behalf of the defendants in error are distinguished by their facts from the instant case.
It does not appear, from the facts stated in the petition, that, as a matter of law, the negligent acts of Lunsford in operating his automobile were the sole proximate cause of the plaintiff's injuries, and the question as to whether his negligence was the sole proximate cause should have been submitted to the jury. The jury should also have been permitted to determine from the evidence whether the concurrent acts of negligence of the three defendants, or whether the separate acts of negligence of either of them, constituted the proximate cause of the injuries sued for.
It follows that the sustaining of the general demurrers interposed to the petition by Green and Lane was error.
Judgment reversed. MacIntyre and Gardner, JJ., concur.