*1 187 v. еt al. STAPLES. PITTMAN 36385. Rehearing denied January 30,
Decided February 22, 1957.
Jones, Sparks, & Cork, plaintiffs Benton error. B. Gostin, Shelley E. Mincey, David L. & contra. Harrell, J. Quillian, non-negligent guest This is case where a pas- senger was killed in a collision between of his the automobile parked defendant, a truck The George Pittman, F. who truck, according alle- gations petition, high- within 12 feet center of way, road, Company a State-aid and Macon Brick & Block who respondeat superior responsible was undеr doctrine of for his general petition. conduct filed a demurrer *4 place The contention not is that the and manner in which the upon highway truck was left the was lawful prudent or but that petition the disclosed the action that of the host driver not in keeping a in not lookout and discovering that the truck and he standing supposed, moving not along as in highway traveling, proximate direction he was constituted the sole resulting cause of the collision in injuries. fatal deceased’s In opinion it will this be assumed but not decided that petition affirmatively negligence part did disclose on of the
191 a con- truсk from observing the defendant’s in not by could it, and that he approached he siderable distance as it discovered that slight care have ordinаry or even exercise like- is the collision. It moving have avoided and thus analysis factual situation described of the purpose wise, for the obsеrve driver failed to the host accepted that in the situation he (15) that (Ann. 68-1670 Supp.) Code requirements of upon it operating while his automobile lookout ahead of keep a thoroughfare. public imprudent is to an- it that one who is not bound While is true by danger negli- or his ticipate a condition сreated dormant in by criminal is stated gence act, will be activated a the rule (7 App. 7, Bozeman v. Truck 62 Ga. 10 Line, the case of Blue’s 412): not be principle 2d “The that one tort-feasor will S. E. independent an injury liable where the sustained is caused and person proximate which is criminal act of third thе direct a (Andrews (2), 114 E. damage Kinsel, v. Ga. 390 40 S. cause of the ascertain, been Am. so far as have able 25), St. R. we 300, per does not con- refers deliberаte which are mala se. It acts negligence, may template an act which be found to be due to may is is prohibitum. malum The reason that one although be anticipating mala ordinarily charged duty of acts with the exceptions rule, one tort-feasor per se, but there are this simply anothеr liability by showing escape can not his own when he himself prohibitum, a malum guilty has been crime it must be a crime.” concluded that guilty been similar So the viola- simply conduct because it constituted the host driver’s as public law, was not nature to relieve de- tion of such leaving consequence unlawful of thеir act fendants of upon 12 feet the center of the within truck negligence to insulate the defend- In order the host driver’s as defendants liability it must have been ants from such reasonably anticipated at time created could not have leaving standing high- situation perilous Cozwell, App. way. Line R. Co. v. 93 Ga. Atlаntic Coast (91 135). E. 2d S. that the of the clearly appears from averments
It as have been rea- host driver was such should negligence *5 sonably apprehended by the prominent defendants. One reason why leaving a parked on portion the traffic highway of a is dangerous is that following may others vеhicles not until pass undertake to precedes one them, that become aware that they are in too proximity parked close truсk or automobile standing roadway in the avoid colliding to it. with
Another
is that
rule
the nature of default on the
driver’s
host
part that would intervene to relievе the
liability
from
defendants
must be
to
ordinary
a failure
exercise
to avoid
care
the defend-
negligence
ants’
after he
existence,
discovered its
is,
that
after he
discovered that the truck
highway
was
that
not,
supposed,
was
as he
moving along
who
“One
negligently
acts
is
necessarily
not bound
аnticipate
an-
person
other
negligent
will be
after
latter has discovered the
danger arising from
former’s negligence.
actor,
The first
however,
permitted
is
to assume that the second actor will
discover
danger
by
caused
first
negligence.
actor’s
Ac-
cordingly, where the second actor, after having become
of
aware
the existence
potential danger
negligence
of
created
actor,
the first
negligently
respect
acts
dangerous
situ-
thereby brings
ation
injurious
about an accident with
conse-
quences to others,
first
actor is relieved of liability, because
the condition
him
merely
created
a circumstance and not
proximate
cause
accident.
if
However,
the second actor
аpprised
danger
does
become
arising
from the first
negligence
actor’s
until after
negligence,
his own
added
existing peril,
made
injurious
an accident with
consequences
inevitable, both
liable,
negligence
actors are
since
one
concurs with
negligence
proximately
of the оther
to cause
injury
.
.
.”
Judgment Felton, J.,C. and Nichols, J., concur. affirmed. Rehearing.
On Motion On rehearing motion for the defendant makes the contention (Ann. prоhibits Supp.) which 68-1670 Code that the section line of 12 feet the center within of motor vehicles parking *6 applied in construed when highway should be road or a State-aid roadways four- is on of the of a parking one the a case where space between the two line of the be center highway to the lane to rule that it is not and The tenable roadways. contention is requirements an absurd- under Code section would be correct is in- as it statute because if we construe ity. This is true between space refer to the center the defendant to sisted very in center roadways park one could two stat- comply still with the road and portion traveled such defendant. is construed as it ute v. DARNELL et 36447. BARTOW COUNTY al. damages property private J. 1. In an action to Quillian, I, III, Paragraph I, instituted under Article Section showing allegations Constitution, State and Code 95-1710, cause, describing property the nature and damaged, of the damaged relating property manner in in the which designated proper and highway, construction of a State are subject necessary plaintiffs’ case, forth the hence are not set they imma ground to demurrer on the are irrelevant and alleged petition. terial to the cause in the adjacent 2. fill plaintiffs’ Averments a was constructed high, long, field 60 feet culvert fertile feet with a 4-foot at base, resulting along high in water from its miles 1% way being upon inundating in great quantities field, cast rendering valueless, directly pertinent it and were facts subject criticism that were conсlusions pleader petition. or irrelevant to the cause set out in the damages allegation brought in a to recover under 3. The provision the constitutional and Code section referred to negligent 1 that a result construction of headnote “as highway, plaintiffs’ property said the value diminished $5000, plaintiffs in value not than which amount have less injured damaged,” subject been demurrer on damages ground appropriate solely claimed were that the