Rome Railway & Light Co. v. Jones

33 Ga. App. 617 | Ga. Ct. App. | 1925

Jenkins, P. J.

1. The ground of demurrer, setting up that the plaintiff is not entitled to recover, by reason of the fact that it appears from the petition that she had accepted compensation from the employer of her deceased husband under the provisions of the workmen’s compensation act, is controlled, adversely to the movant, by the decision of this court in Hotel Equipment Co. v. Liddell, 32 Ga. App. 590 (124 S. E. 92 (1 b) ).

2.'While the determination of questions of negligence lies peculiarly within the province of the jury, and in the exercise of this function the question as to what constitutes the proximate cause of the injury complained of may be directly involved as one of the essential elements and disputed issues in the ascertainment of what negligence, as well as whose negligence, the injury is properly attributable to, and while it is also true that the mere fact that the injury would not and could not have resulted by reason of the defendant’s acts alone will not of itself be taken to limit and define the intervening agency as constituting the proximate cause (Rollestone v. Cassirer, 3 Ga. App. 161, 173, 59 S. E. 442; Ga. Ry. & Power Co. v. Ryan, 24 Ga. App. 288, 100 S. E. 713), yet a demurrer to a petition should be sustained where it appears from the plaintiff’s pleading that the'negligence charged against the defendant was not the proximate and effective cause of the injury. Southern Ry. Co. v. Barber, 12 Ga. App. 286 (77 S. E. 172). The most generally accepted theory of causation is that of natural and probable consequences (Mayor &c. of Macon v. Dykes, 103 Ga. 847, 848, 31 S. E. 443); and in order to hold the defendant liable the petition must show either that the act complained of -was the solo occasion of the injury, or that it put in operation other causal forces, such as were the direct, natural, and probable consequences of the original act, or that the intervening agency could have reasonably been anticipated or foreseen by the original wrongdoer. Southern Ry. Co. v. Webb, 116 Ga. 152; Hardwick v. Figgers, 26 Ga. App. 494 (106 S. E. 738); Gillespie v. Andrews, 27 Ga. App. 509 (1) (108 S. E. 906). The petition in the instant case does not show on its face that the alleged negligence of the defendant did not constitute the proximate cause of the injury; nolis this court able to say as a matter of law that the intervening contributing agency should not have been reasonably anticipated by the defendant as a natural and probable consequence of its own alleged negligence; nor that the deceased might have obviated the consequences of defendant’s alleged negligence by the exercise of ordinary care on his part.

Decided April 10, 1925.

3. In accordance with the foregoing rulings, the judge did not err in overruling the demurrer to the plaintiff’s petition.

Judgment affirmed.

Stephens and Bell, JJ., concur. L. A. Dean, Lamar C&mp, for plaintiff in error. Willingham, Wright & Covington, Scott, Kemper & Hornbuclcle, contra.