10 S.E.2d 133 | Ga. Ct. App. | 1940
The petition set out a cause of action as to the Fruehauf Trailer Company. The court erred in sustaining the general demurrer and dismissing the action as to that defendant.
The plaintiff further alleged, that the "driver of the Rayola truck was negligent per se in operating a heavily laden truck on a public highway at the unlawful rate of speed of fifty miles an hour *52 or more, and in rounding a curve and failing to decrease the speed while so doing, and in operating the truck while rounding the curve at such unlawful rate of speed;" that the driver of the Rayola truck was negligent in failing to decrease the speed of the truck and to have the truck under control, and after rounding the curve in failing to decrease such speed or to come to a stop when he saw or should have seen the bus which the plaintiff was operating in the act of crossing the street and entering into Moore Street; that such truck was being operated in violation of an ordinance of the City of Savannah relative to its speed, and in violation of the law of the State prohibiting the operation of a loaded motor vehicle, the total gross weight of which exceeded 16,000 pounds, at a greater speed than twenty miles an hour; that the driver of the Fruehauf truck was negligent per se, in that he stopped the truck and trailer with the left side next to the curb on Bay Street Extension, in violation of an ordinance of the City of Savannah; that "it was negligence on the part of the driver of the Fruehauf truck to continue to back the truck and trailer and thus lessen the passing space, when in the exercise of ordinary care he should have been aware of the approach of the Rayola truck and the position of the bus;" that, "because of the negligence of the Fruehauf Company in closing up said passing space as the Rayola truck approached, the driver of the Rayola truck found he was unable to pass the bus in safety which otherwise he could and should have done;" that the negligence of the Fruehauf Company in closing up said distance in said manner, so as to suddenly remove the opportunity of the Rayola truck passing between the two vehicles, concurred with the negligence of the driver of the Rayola truck in causing the collision with the bus; that as a result of the joint and concurrent negligence of the two defendants the plaintiff was injured; and that "each of the acts of negligence on the part of the defendants concurred as the proximate cause of the injuries received" by the plaintiff. The judge sustained the demurrer as to the Fruehauf Trailer Company, and struck that defendant from the case. This ruling is assigned as error by the plaintiff.
The plaintiff alleged that he was injured by reason of the joint concurrent negligence of the two defendants, and that "each of the acts of negligence on the part of the defendants concurred as the proximate cause of the injuries received" by him. It is well established *53
that there may be more than one proximate cause of an injury. The proximate cause of an injury may be two separate and distinct acts of negligence operating concurrently; and, "Where two concurrent acts of negligence operate in bringing about an injury, the person injured may recover against either or both of the persons responsible." Callahan v.Cofield,
It is alleged that the plaintiff was injured as a result of certain specified acts of negligence on the part of Rayola and on the part of the Fruehauf Trailer Company. Where two concurrent acts of different persons operate directly in bringing about the plaintiff's injury, he may recover against either or both of the responsible persons. The fact alone that the plaintiff's injury and consequent damage would not have been sustained had only one of the persons been guilty of the negligent acts charged will not of itself operate to define and limit the negligent acts of the other person as constituting the proximate cause. If the negligent acts of both actors contribute directly and concurrently in bringing about the plaintiffs injuries, then such acts together constitute the proximate cause or causes of such injury. What constitutes the proximate cause of an injury may be directly involved as one of the essential elements and the disputed issues in the ascertainment of what negligence, as well as whose negligence, the injury is properly attributable to; and except in plain and indisputable cases this question is to be determined by the jury under instructions by the judge.Callahan v. Cofield,
Under the facts alleged, a jury might find that the plaintiff's injuries would not have resulted from the manner in which the driver of the truck and trailer belonging to the Fruehauf Company was endeavoring to back such truck and trailer into the defendant trailer company's parking lot by "jack-knifing" the truck and trailer, thus creating a blockade of the street along which the truck of Rayola was being operated, had it not been for the fact that the truck of Rayola, which was heavily loaded, was being operated in violation of law and at an excessive speed and was not in control of the driver thereof. Likewise a jury might well find that the automobile truck of Rayola would not have collided with the bus operated by the plaintiff, had it not been for the virtual blockade of the street on the side along which this truck was entitled to proceed, and had it not been for the manner in which the driver was "jack-knifing" this truck and trailer (having stopped the truck and trailer with its left side to the curb on Bay Street Extension, in violation of an ordinance), and had it not been for the fact that the driver of such truck and trailer continued so to do, and closed up the space between the cab of the truck and trailer and the stationary *55 bus being operated by the plaintiff, making it impossible for the driver of the Rayola truck to pass between such truck and trailer and stationary bus being operated by the plaintiff. The jury might find that it took the alleged negligent acts of both the defendants, operating concurrently, to produce the plaintiff's injuries, and that the acts of the defendants in the premises, independently of each other, would not have resulted in a collision between the Rayola truck and the bus operated by the plaintiff. The mere fact that the plaintiff's injuries would not have been sustained had only one of the acts of negligence occurred will not of itself operate to limit the other act as constituting the sole proximate cause.
The petition set out a cause of action against the Fruehauf Trailer Company, and the judge erred in dismissing the action on general demurrer, in so far as it applied to this defendant.
Judgment reversed. Sutton and Felton, JJ., concur