Mcginnis v. Shaw

• Decision Date: 11 January 1933
• Docket Number: Nos. 22152, 22189.,s. 22152, 22189.
• Citation: 46 Ga.App. 248,167 S.E. 533
• Parties: McGINNIS. v. SHAW et al. CENTRAL OF GEORGIA RY. CO. v. SAME.
• Court: Georgia Court of Appeals

46 Ga.App. 248

167 S.E. 533

McGINNIS.

v.SHAW et al.

CENTRAL OF GEORGIA RY. CO.

v.SAME.

Nos. 22152, 22189.

Court of Appeals of Georgia, Division No. 2.

Jan. 11, 1933.

Syllabus by Editorial Staff.

Error from City Court of Polk; F. A. Irwin, Judge.

Suit by C. D. Shaw against R. H. McGinnls and the Central of Georgia Railway Company. Separate demurrers of defendants to the petition were overruled, and they bring error separately.

Judgment affirmed on R. H. McGinnis' bill of exceptions, and reversed on bill of exceptions of Central of Georgia Railway Company.

In case No. 22152:Wm.W. Mundy, Wm. H. Trawick, and W. W. Mundy, Jr., all of Cedartown, for plaintiff in error.

Wright & Covington and Maddox, Matthews & Owens, all of Rome, and John K. Davis and W. K. Fielder, both of Cedartown, for defendants in error.

In case No. 22189:W. K. Fielder, of Cedartown, and Maddox, Matthews & Owens, of Rome, for plaintiff in error.

W. W. Mundy, W. H. Trawick, and John K. Davis, all of Cedartown, and Wright & Covington, of Rome, for defendants in error.

Syllabus Opinion by the Court.

JENKINS, P. J.

This was a joint suit against a railway company and the driver of an automobile in which the plaintiff was riding as a guest, for injuries alleged to have been sustained in a collision, which occurred between 9 and 10 o'clock at night, at a railroad crossing within the limits of the city of Cedartown, between the automobile and an engine and tender of the defendant railway company which were being backed over the crossing. Negligence was charged against the railway company, in that it failed to give any signal or warning to persons approaching the crossing, of the presence of the locomotive standing upon or passing over the crossing; in failing to have a flagman at the crossing to direct and protect persons going across the tracks; in failing to keep a lookout as the locomotive approached the crossing; in failing to have the locomotive under control as it approached the crossing so as to be able to stop the same and protect the lives and property of those who might be upon the crossing; in not having a light on the rear of the tender so as to give warning of its approach to the crossing; and in not having a flagman present with a red light or other light so as to control and direct traffic and prevent collisions. Gross negligence was charged against the driver of the automobile in operating the automobile over the tracks and in increasing its speed upon approaching the tracks upon which the locomotive was being operated, in not keeping a proper lookout to the left to observe and detect the approach of the locomotive, and in failing to detect the presence of the same in time to prevent a collision, and in failing to keep his automobile under control while crossing the railroad tracks so as to enable him to stop the same and avoid a collision with any train that might be upon the crossing. It was also alleged that, as they approached the crossing, the driver of the automobile directed the plaintiff to look to the right to observe whether any trainwas approaching the crossing, which the plaintiff did, and the driver agreed to look to the left for the same purpose, but failed and neglected to do so. The defendant railway company and the defendant driver of the automobile filed separate demurrers to the petition, which were overruled, and each of them brings the case to this court for review by separate bills of exceptions. Held:

1. It is a well-established general rule that, "where two or more persons or corporations, acting independently, without concert, plan, or other agreement, inflict a damage or cause an injury to another person, the persons inflicting the damage are not jointly liable therefor, but each is liable for his proportion only of the damages; and in such a case a joint action against them cannot be maintained." Armstrong v. Southern Ry. Co., 29 Ga. App. 418, 116 S. E. 31; Schneider v. City Council of Augusta, 118 Ga. 610, 611, 45 S. E. 459; Georgia So. & Fla. Ry. Co. v. Corry, 149 Ga. 295, 301, 99 S. E. 881; City of Albany v. Brown, 17 Ga. App. 707, 88 S. E. 215; United Cigars Co. v. Ga. Ry. & Power Co., 27 Ga. App. 198, 107 S. E. 781; Brooks v. Ashburn, 9 Ga. 297(3); Key v. Armour Fertilizer Works, 18 Ga. App. 472, S9 S. E. 593. But it is also true that, even though voluntary intentional concert is lacking, 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. Aaron v. Coca Cola Bottling Co., 143 Ga. 153, 155, 156, 84 S. E. 556; Jolly v. City of Atlanta, 37 Ga. App. 666, 141 S. E. 223. Thus, where two concurrent causes naturally operate in causing an injury, there can be a recovery against both or either one of the responsible parties. Bonner v. Standard Oil Co., 22 Ga. App. 532, 535, 96 S. E. 573; Kelly v. Ga. Ry. & Power Co., 24 Ga. App. 439(4), 101 S. E. 401; Central of Ga. Ry. Co. v. Macon Ry. Co., 9 Ga. App. 62S(4), 71 S. E. 1076: Akin v. Brantley, 26 Ga. App. 326, 106 S. E. 214; Central of Ga. Ry. Co. v. Garrison, 12 Ga. App. 369, 77 S. E. 193: Barrett v. City of Savannah, 9 Ga. App. 642, 72 S. E. 49; and this is true although the duty owed to the complainant by both parties defendant may or may not have been the same, Gooch v. Ga. Marble Co., 151 Ga. 462, 107 S. E. 47; Central of Ga. Ry. Co. v. Wheat, 32 Ga. App. 151, 122 S. E. 794; Fulton Iee & Coal Co. v. Pace, 29 Ga. App. 507(5), 116 S. E. 57; Byne v. City of Ameri-cus, 6 Ga. App. 48(3), 64 S. E. 285; Scearce v. City of Gainesville, 33 Ga. App. 411(3), 126 S. E. 883.

2. No general yet precise and inflexible rule can be laid down with reference to the highly involved and much-discussed subject of what constitutes the proximate cause of an injury. Consequently each case must depend for solution upon its own particular facts; but it is a well-settled principle of law that, where two concurrent causes operate directly in bringing about an injury, there can be a recovery against either one or both of the responsible parties. The mere fact that the injury would not have been sustained had only one of the acts of negligence occurred will not of itself operate to define and limit the other act as constituting the proximate cause, for, if both acts of negligence contributed directly and concurrently in bringing about the injury, they together will constitute the proximate cause. The determination of questions as to negligence lies peculiarly within the province of the jury, and, in the exercise of this function, the question as to what constitutes the proximate cause of an injury complained of may be directly involved as one of the essential elements and disputed issues in the ascertainment of what negligence, as well as whose...