41 Ga. App. 722 | Ga. Ct. App. | 1930
(After stating the foregoing facts.) We think the court should have, sustained the demurrer in whole, instead of sustaining it in part and overruling it in part. In other words, our opinion is that the petition failed in any count to set forth a cause
It is immaterial what was the kind or degree of the defendants’ fault, or their states of mind, if their acts and omissions did not contribute to the injury; and the petition fails to show that the plaintiff’s injury was caused by anything which the defendants, or either of them, did or failed to do. The case against Mr. Luxemburg was not stronger than that against his wife; and as to her the sole complaint is that she essayed to drive the automobile despite lier inexperience and incompeteney, and this, too, on a holiday, when the traffic, as she knew, would be dense, and that she continued driving notwithstanding two “narrow escapes” on the same trip, resulting from her lack of skill, one in which she almost went oif the road to the left, and the other in which she ran too far to the right, in passing automobiles. To refer inversely to these circumstances, the fact that Mrs. Luxenburg had poorly maneuvered the automobile in two instances, a short time before, might have been illustrative of other negligence or lack of control, if any, at the time of the accident, but could not serve to render her liable where she did not fail to handle the car in a proper manner at and after it was
Thus we eliminate everything except the inexperience and incompetency of Mrs. Luxenburg as a driver, and this alone is not a ground of recovery. In 42 C. J. 897-8, it is said: “Ordinary care in the operation of a motor-vehicle requires that a driver or operator shall be physically capable of operating it and shall possess skill and experience sufficient to operate it with reasonable safety. Accordingly, the competency of the driver is a proper matter for consideration on an issue of negligence; and where he has failed, by reason of his incompetency or inexperience, to manage his car in a reasonably prudent and careful manner, he is liable for any resulting injury. Conversely, an automobilist can not recover for an accident to which his own inability to manage his car properly contributed. But, in the absence of any evidence tending to prove negligence of the driver, the mere fact that he was inexperienced is not sufficient to charge him with liability for an accident in which the car was involved.” See also, in this connection, Western & Atlantic R. v. Reed, 35 Ga. App. 538 (4) 544 (134 S. E. 134); Farmer v. Georgia Power Co., 39 Ga. App. 61 (2) (146 S. E. 40). But counsel for the plaintiff say, in effect, that the various eircum
The petition as a whole shows affirmatively that the acts and omissions of Mr. and Mrs. Luxenburg were not a proximate cause of the plaintiff’s injuries; and therefore the court should have sustained the demurrer and dismissed. the petition in its entirety. Ayers v. Louisville & Nashville R. Co., 5 Ga. App. 454 (63 S. E. 530); Atlantic Coast Line R. Co. v. Daniels, 8 Ga. App. 775 (2) (70 S. E. 203); Southern Ry. Co. v. Barber, 12 Ga. App. 286 (77 S. E. 172); Southern Ry. Co. v. Pair, 32 Ga. App. 378 (123 S. E. 142); Artope v. Central of Ga. Ry. Co., 38 Ga. App. 91 (143 S. E. 127); Morrison v. Columbus Transportation Co., 39 Ga. App. 708 (148 S. E. 276); Compton v. Seaboard Air-Line Ry., 145 Ga. 255 (88 S. E. 988); 1 Shearman & Redfield on Negligence (6th ed.), 46, § 25; 45 C. J. 901. This is not a case of the concurring negligence of several, nor is it proper to speak of the negligence of Bate-man as an intervening agency. Cf. Andrews v. Kinsel, 114 Ga. 390 (2) (40 S. E. 300, 88 Am. St. R. 25). On the other hand, the petition disclosed no active negligence whatever on the part of the Luxenburgs at the time of the impact of the cars, and thus none with which the negligence of Bateman could have concurred or which it even could have intercepted or insulated. So far as appears, the improper handling of the Luxenburg car was past and over with, and the negligence of Bateman was the only original or continuing casual force which operated to produce the injury.
Of the two bills of exceptions in this case the first was sued out by the defendants. This is unquestionably a main. bill. The bill of exceptions thereafter tendered aiffi certified for the plaintiff is termed a cross-bill; but, in view of its form and contents and the time within which it was brought, that bill might perhaps also be treated as a main bill, provided it contains no other fatal infirmity.
Judgment in No. 20116 reversed; in No. 20155 affirm,ed.