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WASHINGTON v. KEMP.
36994.
Tort; automobile collision. Albany City Court. Before Judge Jones. November 1, 1957.
CARLISLE, Judge.
1. Code (Ann.) 68-1670 (15) making it unlawful to stop or park a motor vehicle along any state-aid road less than 12 feet from the center line thereof is a statute enacted for the protection of motorists who might meet or follow the parked vehicle. Accordingly, the plaintiff, who was forced to halt her car in the right-hand lane of traffic because the defendant's vehicle blocked the road ahead, and who was unable to pass because of approaching traffic, belongs to the class of persons coming; under the protection of the statute.
2. Negligence on the part of one alleged to be a joint tortfeasor is not too remote as a matter of law to enter into the proximate cause of injury inflicted on a non-negligent plaintiff if the tortfeasor might reasonably have anticipated that, as a result of his own negligence in creating a dangerous situation, the negligence of another, operating in conjunction with his own negligent act, would cause injury to the plaintiff.
3. One who is himself violating the traffic laws of this State is not entitled to the benefit of the presumption that other persons traveling along the road will observe such laws, but must anticipate that others, like himself, will be negligent in respect thereto.
236 WASHINGTON v. KEMP. (97 Ga,
4. Accordingly, a petition alleging that the demurring defendant stopped his automobile on a state-aid road in such manner as to block traffic following him, in violation of law, that the plaintiff and another were forced to halt behind the defendant's vehicle (being unable to pass because of oncoming traffic) and that a fourth vehicle, traveling at a rapid and reckless rate of speed, crashed into the line of cars and inflicted injury on the plaintiff, sufficiently presents a jury question both as to whether the demurring defendant was negligent, and, if so, whether his negligence concurred with that of the codefendant in inflicting the plaintiff's injuries.
Mrs. T. A. Kemp filed suit for damages against Augustus Washington and John Lee Jones. The petition alleged substantially the following facts: that on December 23, 1956, at about 5:45 p.m., the petitioner was operating her automobile proceeding in a northerly direction along the Newton Highway near Albany, Georgia; that just south of the point where Slappey Drive and said Newton Highway converge, the plaintiff noticed an automobile stopped on the right side of said highway directly in front of her car and parked at an angle with its left rear wheel on the pavement and less than 12 feet from the center line of the highway; that in the exercise of ordinary care and diligence, the plaintiff came to a complete stop with her vehicle immediately behind said stopped vehicle; that said stopped vehicle was owned and operated by the defendant, Augustus Washington; that it had its right rear door standing wide open and was so stopped that it blocked the highway and prevented the plaintiff from proceeding in that she would have had to turn into the lane of oncoming traffic in order to pass it; that while the plaintiff's vehicle was thus stopped, another vehicle operated by one Hays traveling in the same direction was forced to stop behind the plaintiff; that within the space of time "of just a few minutes after she had stopped her car behind the Washington vehicle, and the Hays vehicle had stopped behind her car," the vehicle operated by the other defendant John Lee Jones approached from the rear of the Hays vehicle at a rate of speed in excess of the maximum permissible speed for night-time driving and estimated at 85 miles per hour and struck the rear of the Hays vehicle propelling it into the rear of the plaintiff's car and knocking it a distance of 93 feet to the left side of the highway; that the defendant Jones' vehicle then proceeded onward and struck the Washington car, dragging it off the highway; that the impact of the Jones vehicle with the Hays vehicle propelled it 168 feet. It was alleged that the defendant Augustus Washington was negligent as a matter of law in stopping his vehicle on a State highway so that it was not at least 12 feet removed from the center line of said highway; and negligent in stopping his vehicle with the rear wheel on the pavement and so blocking the highway that the plaintiff, in the exercise of ordinary care, was forced to stop her vehicles and in failing to stop or park his car so that no portion of it was within 12 feet of the center line of said highway, and in parking his car at the time and place with the right rear door wide open and thereby impeding the vision of motor vehicle operators approaching from the rear, and in failing to exercise care and diligence under circumstances so as to prevent injury and damage to the plaintiff and her property. It was alleged that the defendant Jones was negligent in failing to keep a proper lookout in operating his vehicle in excess of the maximum speed limit (negligence per se); in operating his vehicle at a speed that was greater than was reasonable and prudent under the conditions then existing; in permitting his vehicle to get out of control and thereby colliding with the Hays vehicle; in not having his vehicle under control as to speed and otherwise when approaching the intersection of a busy highway at a point where special hazards exist which require vehicles to lower their speed, the area being a congested one, and that the operation of the vehicle in excess of the lawful maximum speed laws constituted negligence per se. The defendant Washington filed a general demurrer to the petition in which he contended that the allegations of the petition showed that the negligence charged against him was not the proximate cause of the plaintiff's injuries; that the alleged injuries received by the plaintiff were not the natural and probable consequences of negligence charged against him; and, that the allegations of the petition showed that the direct, immediate and proximate cause of the injuries and
damage to the plaintiff was the negligent intervening act of the defendant Jones, rather than the acts of Washington. The trial judge overruled these demurrers and objection here is to that judgment.
Taking the allegations of the petition as true, there is no question but that the conduct of the defendant Washington in halting his automobile in such manner as to block traffic following him on a heavily travelled road constituted negligence, and that his violation of Code (Ann.) 68-1670 (15) requiring vehicles traveling on state-aid roads to be at least 12 feet from the center line thereof when stopped or parked constituted negligence per se. This negligence was passive as to the plaintiff; she having succeeded in stopping her vehicle when she saw that the road ahead was blocked, could no longer be injured by the negligence of Washington alone. But, there is no doubt that, had Washington not stopped, neither the plaintiff's vehicle nor the Hays car would have stopped. Therefore, but for the negligence of Washington, the plaintiff would not have been in a position where the negligence of the other defendant, Jones, could injure her, but with Jones' negligence added to that of Washington the injury became inevitable. Thus, because of the passive negligence of one defendant, the plaintiff was compelled to remain within the pate of active and violent negligence of another and was prevented from escaping the effects of the latter. The question for decision is whether in such a case it must be held as a matter of law that the latter act is the sole proximate cause of the injuries received. The rule to be applied, as stated in 38 Am. Jur. 731, 72 and quoted in Pittman v. Staples, 95 Ga. App. 187, 192 (97 S. E. 2d 630) is as follows: "One who acts negligently is not bound necessarily to anticipate that another person will be negligent after the latter has discovered the danger arising from the former's negligence. The first actor, however, is not permitted to assume that the second actor will discover the danger caused by the first actor's negligence. Accordingly, where the second actor, after having become aware of the existence of a potential danger created by the negligence of the first actor, acts negligently in respect of the dangerous situation and thereby brings about an accident with injurious consequences to officers, the first actor is relieved of liability, because the condition created by him was merely a circumstance and not the proximate cause of the accident. However, if the second actor does not become apprised of the danger arising from the first actor's negligence until after his own negligence, added to the existing peril, has made an accident with injurious consequences inevitable, both actors are liable, since the negligence of the one concurs with the negligence of the other proximately to cause the injury." To paraphrase, Washington, the first negligent actor, may not assume, so as to shield himself from liability, that Jones would discover his negligence in blocking the thoroughfare and by discovering be able to avoid it. Whether Jones did, or should have discovered and avoided Washington's negligence before the collision became inevitable is a question for jury determination, and if upon the trial of the case it appears that this was the fact, then Washington would have no liability for the consequences, but, if not, the liability, like the negligence, would be concurrent. Where one, by his negligence, creates a dangerous situation which is not, however, in itself harmful, whether or not his negligence concurs with a subsequent and independent act of negligence on the part of another to cause injury depends primarily upon whether the latter act of negligence might ordinarily and in the usual course of events have been anticipated by the defendant; if not, it is too remote to stand as an integral part of the proximate cause. In this respect, the rule is that while ordinarily one may assume that officers will obey the law and need not anticipate negligence resulting from prohibited conduct, this rule does not apply to one who is himself violating the law relating to traffic on the highways, and "this being true, it was incumbent upon [him] to anticipate that others, like [himself], might disobey the traffic laws and regulations. Central Railroad & Banking Co. v. Smith, 78 Ga. 694 (4) (3 S. E. 397); Davis v. Whitcomb, 30 Ga. App. 497 (8) (118 S. E. 488)." Williams v. Grier, 196 Ga. 327, 338 (26 S. E. 2d 698). In Bozeman v. Blue's Tick Line, Inc., 62 Ga. App. 7, 9 (7 S. E. 2d 412), it was held: "It is our opinion that the legislature, in making it a crime to park on the highway within eight feet of the center line enacted the law for the
benefit of all persons who might meet or follow the parked vehicle, and its purpose was to avoid collisions by persons coming from behind the parked vehicle and those meeting it. We thus conclude that the illegal parking was negligence as to the plaintiff, which necessarily means that as a matter of law the driver of the truck was bound to anticipate that another might attempt to pass the parked truck from behind and injure one approaching from the front." The same rule was applied in Pittman v. Staples, 95 Ga. App. 187, supra, where, instead of attempting to pass the parked car and thereby running into oncoming traffic, the driver named as a codefendant was unable to stop behind the parked vehicle and ran into it. The plaintiff in error contends that these cases are distinguishable in that the negligence attributable to the illegal parking and blocking of the highway in those cases played a more active and immediate part in the collision, and this contention is based at least in part on the proposition that here the plaintiff's car was not a part of the oncoming traffic but was sandwiched between the parked car of the defendant Washington ahead of it and another vehicle halted behind it. Since the plaintiff was, under the facts alleged, guilty of no negligence whatever, it appears to us immaterial whether she was seated in a stopped vehicle or an oncoming vehicle, and it appears likewise immaterial that a line of three cars was stalled rather than one, two, or five, or that the Jones car collided with an automobile in front of it other than the plaintiff's automobile, instead of precipitating the injury in some other way such as by attempting to pass and becoming involved with oncoming traffic. See also Callahan v. Cofield, 61 Ga. App. 780 (7 S. E. 2d 592). If the statute is for the benefit of operators of following vehicles it was for the benefit of the plaintiff. Since the defendant Washington, being engaged in violating a traffic law, is chargeable with anticipating that others like himself will also violate traffic laws, it follows that the facts alleged in the petition set out a cause of action against both defendants. Whether in point of fact the negligence of Washington was too remote under the rules of law above stated to constitute a concurrent proximate cause of the injuries, and also whether or not, as contended, the Washington vehicle, in the position described in the petition, was not actually blocking the right traffic lane as to vehicles following it, are defenses which will doubtless be developed on the trial of the case, but they are not questions of law which may be decided here.
Millirons v. Blue, 48 Ga. App. 483 (173 S. E. 443) cited by the plaintiff in error is a two-judge decision with one judge dissenting and deals with facts so widely differing from the situation here that it would not in any event be controlling. Horton v. Sanchez, 57 Ga. App. 612 (195 S. E. 873), in which a general demurrer of the owner of the illegally stopped vehicle was sustained, and Silver Fleet Cab Co. v. Bauer, 88 Ga. App. 455, 458 (76 S. E. 2d 845), in which the general demurrer of the owner of the parked vehicle was overruled, are both closer on their facts to the present situation, and Judge Sutton, who wrote both cases, distinguished the Horton case from the Silver Fleet Cab Co. case on the ground that in the former "it was held that the plaintiff's injuries were shown to have been caused by the driver of a following car passing to the right of the defendant's automobile, which had been stopped suddenly, and beside which the plaintiff was standing," which emphasizes the basis of the original opinion, to the effect that there was no allegation in the petition to negative the presumption that the codefendant who ran into the parked automobile could have gone around it on the left in a lawful manner and without injury to the plaintiff. The reasoning was that the decision of the codefendant to pass the parked vehicle on the right, thus injuring the plaintiff who was just entering the car, was not an act which, under the circumstances, was chargeable to the defendant operating the vehicle which had stopped in the road, in view of the fact that the codefendant might have passed on the left without injury to the plaintiff.
We adhere to the rule that "in all cases where the minds of reasonable persons may disagree as to whether an act alleged to be negligent is in fact negligence, as well as in all cases where reasonable minds may disagree as to whether the negligence alleged concurred with the negligent acts of third persons as a proximate cause, these questions should go to a jury for decision."
The trial court did not err in overruling the general demurrers to the petition. This case was considered by the whole court as provided by the act of 1945 (Ga. L. 1945, p. 232).
Judgment affirmed. Felton, C. J., Gardner, P. J., Townsend, Quillian and Nichols, JJ., concur.
George L. Sabados, contra.
Burt & Burt, W. H. Burt, for plaintiff in error.
DECIDED FEBRUARY 27, 1958.
Saturday May 23 01:32 EDT


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