Callahan v. Cofield

• Decision Date: 29 February 1940
• Docket Number: No. 27893.,27893.
• Parties: CALLAHAN et al. v. COFIELD et al.
• Court: Georgia Court of Appeals

7 S.E.2d 592

CALLAHAN et al.

v.COFIELD et al.

No. 27893.

Court of Appeals of Georgia,

Division No. 2.

Feb. 29, 1940.

Syllabus by the Court.

1. There may be more than one proximate cause of an injury.

2. The proximate cause of an injury may be two separate and distinct acts of negligence acting concurrently in causing the injury.

3. Where two concurrent acts of negligence operate in bringing about an injury, the person injured may recover against either or both of the persons responsible.

4. The mere fact that the plaintiff's injuries would not have been sustained had

only one of the acts of negligence occurred will not of itself operate to limit the other act as constituting the proximate cause.

5. Except in plain and indisputable cases, what negligence as well as whose negligence constitutes the proximate cause of an injury is for determination by the jury under proper instructions from the court.

Error from City Court of Eastman; D. D. Smith, Judge.

Action by J. L. Cofield and others against H. G. Callahan, Hamilton Callahan and another to recover for injuries suffered when named plaintiff's wagon was struck by an automobile. To review a judgment overruling named defendants' demurrer to the petition, named defendants bring error.

Affirmed.

Harris,. Harris, Russell & Weaver, of Macon, and Will Ed Smith, of Eastman, for plaintiffs in error.

O. J. Franklin, of Eastman, for defendants in error.

STEPHENS, Presiding Judge.

J. L. Cofield filed suit against H. G. and Hamilton Callahan, composing the partnership of Callahan Brothers, and against J. K. Chance, to recover damages for personal injuries and property damage caused by the alleged negligence of the defendants. It appears from the plaintiff's petition, as amended, that on the afternoon of August 18, 1938, the plaintiff was driving a two horse wagon upon his right side of an unpaved public highway, that a motor truck of Callahan Brothers approached the plaintiff's wagon from the opposite direction in which the plaintiff was proceeding, that this truck was being operated about 50 miles an hour, and carried with it a dense mass of cloud and dust, that when the plaintiff observed this truck approaching he pulled over to his extreme right-hand side, that as the truck approached the driver of the truck began to check the speed thereof, and this led the plaintiff to believe that the driver intended to stop the truck and converse with him, that the truck was brought to a sudden and abrupt stop, and the driver thereof did not hold out his hand, that the application of the brakes intensified the denseness of the dust and obscured vision around the truck so that one could see for only a few feet, that just a few feet behind the truck, to which was attached a trailer, the defendant J. K. Chance was following in his automobile, and that the sudden stopping of the truck, without warning, took Chance by surprise and he thereupon steered his automobile to the left of the truck and into the team and wagon of the plaintiff inflicting the injuries and damage sued for. By an amendment the plaintiff alleged that when Callahan Brothers' truck stopped it was about one foot to the right of the regular wheel ruts made in the road by traffic and almost even with the plaintiff's team, producing at the point almost a solid blockade of the highway, that the driver of the truck could have turned it easily at least six feet further to the right, thereby leaving sufficient room for a lane of traffic between the plaintiff's wagon and the truck. It was further alleged that the truck was not parked eight feet from the center of the highway and that it was not equipped with good and sufficient rear-view mirror which constituted negligence per se. The acts of negligence charged against the defendants were (a) in driving the truck at an excessive rate of speed, (b) in making the sudden, abrupt and unexpected stop with the truck without extending his hand and arm horizontally from and beyond the left side of the truck so as to give the proper signal and warning that he was going to stop the truck, (c) in the truck driver's failing to turn his truck far enough to his right so as to give one half of the traveled roadway as he approached the plaintiff, (d) in Chance's driving his automobile at an excessive speed, (e) in that Chance did not have his automobile equipped with efficient and serviceable brakes, and (f) in that Chance steered and turned his automobile to the left of the truck which he had overtaken for the purpose of passing it without ascertaining whether or not the way was clear of approaching traffic.

The defendant Callahan Brothers demurred to the petition. To the judgment overruling its demurrers to the petition Callahan Brothers excepted, naming both the plaintiff and its co-defendant, Chance, as defendants in error in the bill of exceptions.

Callahan Brothers contend that the court erred in overruling their demurrer to the plaintiff's petition because it...