17 Ga. App. 707 | Ga. Ct. App. | 1916
1. The allegations of the petition as amended clearly show the proximate cause of the damage to the plaintiff’s automobile to have been the negligence of the motorman of the street-railway company in continuing to run his car at a rapid rate of speed after he saw the perilous position of the automobile upon the street-ear tracks, when it was about ninety feet distant from the street-ear, and in making no effort to put on his brakes or otherwise to stop the street-car, and in running upon and striking the automobile. The alleged negligence of the City of Albany in leaving in the street, near the tracks where the injury occurred, a large pile of dirt, the striking of which by the automobile caused the automobile to be thrown upon the street-car tracks in such a position that the chauffeur operating it could not move it forward or backward, under all the particular facts as alleged in the petition, was not such an act of concurring negligence as to make the city liable. The petition, failing to show any joint acts of' negligence by the two defendants sued, or that there was any concert of action on their part in the alleged damage to the automobile, did not establish that they were joint tort-feasors, and the court erred in overruling the city’s general demurrer to the petition. Schneider v. Augusta, 118 Ga. 610 (45 S. E. 459); Bonte v. Postell, 109 Ky. 64 (58 S. W. 536, 51 L. R. A. 187); Mayor &c. of Macon v. Dykes, 103 Ga. 847 (31 S. E. 443). The facts in this case distinguish it from the ease of Barrett v. Savannah, 9 Ga. App. 642 (72 S. E. 49), and from the other cases cited and relied on by counsel for the defendant in error.
2. The error of the court, in overruling the demurrer rendered all. further proceedings nugatory, and a discussion of other rulings complained of is unnecessary.
Judgment reversed.
cited: Brooks v. Ashburn, 9 Ga. App. 297; Schneider v. Augusta, 118 Ga. 610; Bonte v. Postell, (Ky.) 51 L. R. A. 187; Brown v. Atlanta, 66 Ga. 71; Mayor &c. of Macon v. Dykes, 103 Ga. 847; Atlantic Coast Line R. Co. v. Daniels, 8 Ga. App. 775; Williams v. Washington, 142 Ga. 281 (82 S. E. 656, L. R. A. (N. S.) 1915A); Gaines v. New York, 156 App. Div. 789.
cited: Barrett v. Savannah, 9 Ga. App. 642; Holliday v. Athens, 10 Ga. App. 709; Mayor &c. of Americus v. Gartner, Id. 754; Eining v. Ga. Ry. & Elec. Co., 133 Ga. 458; Kansas City v. File, (Kans.) 55 Pac. 877; Cline v. Crescent City R. Co., 42 La. 35 (6 Sou. 851).