Harmon v. Southwell, s. 37260
| Decision Date | 16 September 1958 |
| Docket Number | No. 2,Nos. 37260,37272,s. 37260,2 |
| Citation | 98 Ga.App. 261,105 S.E.2d 596 |
| Parties | Marion HARMON v. J. B. SOUTHWELL, Jr., et al. J. B. SOUTHWELL, Jr., et al. v. Marion HARMON |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. A petition which alleges that both the operator of a vehicle and the repairman whom he has procured to remove and repair it were present attempting to change a tire on a truck, and that both were negligent in thereafter abandoning it on the highway without any lights or other warnings to persons using the highway sets out a cause of action and is not subject to demurrer on the ground that it alleges both defendants were in control of the vehicle and were jointly and concurrently negligent in so abandoning it.
2. The charge on concurrent negligence of the plaintiff and defendant complained of in this division of the opinion was confusing and inaccurate.
3. The court should always make plain to the jury that negligence of the defendant, to be actionable, must be such negligence as constitutes a part of the proximate cause of the plaintiff's injuries.
4. The general grounds of the motion for new trial as well as the special ground complaining that the verdict is founded upon bias and prejudice are without merit.
Marion Harmon filed as action for damages for the death of her husband, Claud Wilson Harmon, against J. B. Southwell, Jr. and John Edgar Baker. The petition as amended alleged in substance that Baker was driving a dark green GMC truck when one of the tires blew out; that he then stopped it in the right lane of traffic on a named highway not more than six feet from the center line of the road although there was ample room to park off the paved portion of the road; that J. B. Southwell operates a garage in Folkston, Georgia; that Bennett went to the place of business of Southwell, purchased a tire and employed Southwell to assist him in removing the truck from the highway and repairing it; that H. G. Willingham, employee and authorized agent of Southwell, returned with Bennett to the truck but found they were unable to jack up the truck so as to change the tire; that darkness was rapidly approaching and the truck in its position on the highway constituted a dangerous hazard, but they nevertheless both returned to Folkston for the purpose of obtaining a larger jack without removing it from the highway, although there was ample room to do so, and without lights, flares or warnings of any kind. At about 8 p. m. and after dark the plaintiff's husband, proceeding eastward on the same side of the highway, collided with the rear of the truck and sustained injuries from which he died. The truck was loaded with pulpwood; both the wood and the vehicle were dark in color, and they blended with the darkness of the road and the night so as to make it impossible for a traveler to discern the presence of the vehicle until too late to avoid a collision with it. Demurrers to the petition filed by the defendant Southwell were overruled. The defendant Baker filed no answer and the case went in default as to him. Upon the trial, with both defendants present and testifying, the jury returned a verdict finding against the plaintiff. A motion for a new trial, amended by the addition of 3 special grounds, was filed by Harmon and denied, and the plaintiff excepts to this judgment. The defendant by cross bill of exceptions excepts to the overruling of the demurrers to the petition.
E. W. Highsmith, Anthony A. Alaimo, Brunswick, J. H. Highsmith, Baxley, C. Winton Adams, Nahunta, for plaintiff in error.
Blount & Gibson, Lamar Gibson, Waycross, Carroll Russell, Folkston, Bennett, Gilbert, Gilbert & Whittle, Brunswick, for defendants in error.
1. It is contended by demurrer that the defendants could not have been 'jointly and concurrently' negligent in abandoning the truck on the highway in the face of approaching darkness without lights, flares or warnings, for the reason that Southwell and the driver were independent contractors and one or the other, but not both, must therefore have been in charge of the vehicle at the time. We deal only with this allegation of negligence because (a) Southwell had no part in the original act of stopping the vehicle on the highway, and (b) the evidence demands a finding that Southwell's employee did not fail to exercise ordinary care in having it removed for the reason that the men, when they returned, were unable to crank the truck and move it under its own power. In regard to lights, Code, § 68-1668(b) contains the following: 'Provided, however, the driver or person in charge of such vehicle shall cause such vehicle to be removed from the roadway as promptly as possible; and if such...
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...as a cause of the injury received by the plaintiff. Jackson v. Matlock, 87 Ga.App. 593, 595(4), 74 S.E.2d 667; Harmon v. Southwell, 98 Ga.App. 261, 105 S.E.2d 596; Western & A. R. v. Dalton, 101 Ga.App. 468, 114 S.E.2d 293. The failure by the trial court to charge on proximate cause require......
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