City of Albany v. Brown

• Decision Date: 16 March 1916
• Docket Number: 6655.
• Citation: 88 S.E. 215,17 Ga.App. 707
• Parties: CITY OF ALBANY v. BROWN.
• Court: Georgia Court of Appeals

88 S.E. 215

17 Ga.App. 707

CITY OF ALBANY v. BROWN.

No. 6655.

Court of Appeals of Georgia

March 16, 1916

Syllabus by the Court.

The allegations of the petition as amended clearly show the proximate cause of the damage to the plaintiff's automobile to have been the negligence of the motorman of the street railway company in continuing to run his car at a rapid rate of speed after he saw the perilous position of the automobile upon the street car tracks, when it was about 90 feet distant from the street car, and in making no effort to put on his brakes or otherwise to stop the street car, and in running upon and striking the automobile. The alleged negligence of the city of Albany, in leaving, in the street near the tracks where the injury occurred, a large pile of dirt, the striking of which by the automobile caused the automobile to be thrown upon the street car tracks in such a position that the chauffeur operating it could not move it forward or backward, under all the particular facts as alleged in the petition, was not such an act of concurring negligence as to make the city liable. The petition, failing to show any joint acts of negligence by the two defendants sued, or that there was any concert of action on their part in the alleged damage to the automobile, did not establish that they were joint tort-feasors, and the court erred in overruling the city's general demurrer to the petition. Schneider v. Augusta, 118 Ga. 610, 45 S.E. 459; Bonte v. Postel, 109 Ky. 64, 58 S.W. 536, 51 L.R.A. 187; Mayor and Council of Macon v. Dykes, 103 Ga. 847, 31 S.E. 443. The facts in this case distinguish it from the case of Barrett v. Savannah, 9 Ga.App. 642, 72 S.E. 49, and from the other cases cited and relied on by counsel for the defendant in error.

The error of the court in overruling the demurrer rendered all further proceedings nugatory, and a discussion of the other rulings complained of is unnecessary.

Error from City Court of Albany; Clayton Jones, Judge.

Action by P.J. Brown against the City of Albany and another. Judgment for plaintiff, and defendant city brings error. Reversed.

Jas. Tift Mann, of Albany, for plaintiff in error.

Pottle & Hofmayer, of Albany, for defendant in error.

BROYLES, J.

Judgment reversed.

RUSSELL, C.J., absent.