50 Ga. App. 373 | Ga. Ct. App. | 1935
Clarence Edwards brought an action for damages in Emanuel County against Johnnie McKendree, of said coun
It appears from the petition that, on January 23, 1933, the plaintiff, driving two mules hitched to a two-horse wagon, and traveling in a westerly direction, entered upon a bridge spanning Big Canoochee River on a much-traveled public highway; that Scott, who was under a contract with the State Highway Board of Georgia to widen and repair said bridge, had left his “vacant and unguarded” truck parked “on the south side of said bridge . . near the eastern end thereof . . headed eastwardly,” and leaving “only a distance of seven feet and six inches from” its left wheels “to the northern and unguarded 'side of said bridge;” that as plaintiff was turning to his right to go around said truck, another truck, driven by Johnnie McKendree “in a careless and reckless manner and at a high rate of speed,” hit and “knocked plaintiff and . . plaintiff’s wagon” through the insecure railing constructed by Scott on the right side of the bridge, precipitating them into the stream below and inflicting described injuries; that “from the position of plaintiff’s wagon on the bridge, and from the position of the truck of the defendant Scott on the bridge, at the time . . McKendree came over the crest of the hill . . and down the grade toward the eastern approach to said bridge, it appeared to the defendant McKendree that both vehicles were in motion and in process of passing in an orderly manner, and one which would have provided a clearance through which the truck . . of Mc-Kendree could have passed had the truck of . . Scott been in motion;” that McKendree “continued to advance down the grade toward the eastern approach toward the bridge in a reckless and negligent manner and at a high rate of speed until he reached a position from which he could observe that the truck of the defendant Scott was not in motion, and at that time the defendant Mc-Kendree applied his brakes in an effort to avoid the collision . . , but by reason of his prior negligence was unable to avoid the collision, his truck then being so close to 3rour petitioner and so heavily loaded, and had been traveling at such a rapid and negligent rate of speed, that the defendant McKendree was unable to avoid the results of his own negligence, which, concurrently with
The acts of negligence specified as the proximate cause of the collision are as follows: (a) Scott’s negligence “in leaving the northern side of said bridge without guard rail sufficient to protect the public traveling thereon.” (5) Scott’s negligence “in permitting an unguarded, unoccupied truck to be parked on the bridge aforesaid, in the condition therein stated, leaving only sufficient passageway for one vehicle carefully driven, and thereby creating a needless and unnecessary hazard to the traveling public, when such truck could and should have been driven off of said bridge a few feet onto the shoulder of the bridge approach, which would, therefore, have created a situation of entire safety to the traveling public and to your petitioner.” (c) Scott’s negligence “in failing to place warning signs or signals, or to have watchmen at safe and proper distance from said bridge to warn public or any one driving a vehicle thereon of its dangerous condition and of the hazard created by the parking of said unoccupied truck.” (d) McKendree’s negligence “in operating his truck upon a public highway of this State in a reckless and dangerous manner at a high and excessive rate of speed.” (e) McKendree’s negligence “in approaching said bridge without having his loaded truck under control so that he was unable to retard and stop the said truck in time to avoid striking the vehicle in which petitioner was riding after the negligence of the defendant Scott, as aforesaid, and petitioner’s peril had become apparent to him.” (/) McKendree’s negligence “in operating a heavily loaded truck at a high and reckless rate of speed and in a negligent manner, with brakes insufficient to control such vehicle at such speed and while operated in such manner.”
The defendant Scott demurred to the petition as amended: (1) “Because there is no cause of action set forth in said petition as against this defendant.” (2) “Because it affirmatively appears . . that the injuries complained of were not produced by any act of negligence of this defendant, nor was any act of this defendant the proximate cause thereof.” (3) “Because it affirmatively appears . . that the injuries complained of were the result of the acts of Johnnie McKendree, and that such acts were
■ “Where an immediate act is done by the co-operation, or the joint act of two or more persons, they are all trespassers, and may be sued jointly or severally, and any one of them is liable for the injury done’ by all. To render one man liable, in trespass, for the acts of others, it must appear either that they acted in concert, or that the act of the party sought to be charged, ordinarily and naturally produced the acts of the others.” Brooks v. Ashburn, 9 Ga. 297 (3). “Where two or more persons acting independently, without concert, plans, or other agreement, inflict a damage or cause an injury to another person, one of such persons can not be held liable fox the acts of the others.” Schneider v. Augusta, 118 Ga. 610 (45 S. E. 459). In such á case “each is liable for his proportion only of the damages; and in such a case a joint action against them can not be maintained.” But “if the separate and independent acts of negligence of several combine naturally and directly to produce a single injury, they may be sued jointly, despite the fact that the injury might not have been sustained had only one of the acts of negligence occurred.” McGinnis v. Shaw, 46 Ga. App. 248 (167 S. E. 533), and cit. This principle was applied in Aaron v. Coca-Cola Bottling Co., 143 Ga. 153 (84 S. E. 556), and Jolly v. Atlanta, 37 Ga. App. 666 (141 S. E. 223). In Corley v. Cobb County, 21 Ga. App. 219, 223 (93 S. E. 1015), it appeared that in trying to stop a runaway horse driven by the plaintiff’s wife a third person caused the horse to run off the abutment of a bridge and injure her. The cause of action was grounded solely upon the negligence of the county in not having the abutment of the bridge protected by guard-rails. This court held that a nonsuit was properly granted, for the reason that the proximate cause of the accident was the “ungovernable nature of the runaway horse and the abortive effort of the bystander to stop it.” In that decision the court quoted with approval the following: “It is a general rule as well settled as anything in the law of negligence that a man is responsible for such consequences of his fault as are
The petition alleges that McKendree “was unable to avoid the collision, his truck then being so close to your petitioner and so heavily loaded, and had been traveling at such a rapid and negligent rate of speed, that the defendant McKendree was unable to avoid the results of his own negligence.” We do not think that any act of Scott “ordinarily and naturally produced,” or had any part in producing, the act of McKendree which resulted in the catastrophe. McKendree and Scott were “acting independently, without concert, plans or other agreement.” If a man is only “responsible
Judgment reversed.