Millirons v. Blue
| Decision Date | 12 February 1934 |
| Docket Number | No. 23133.,23133. |
| Citation | 48 Ga.App. 483,173 S.E. 443 |
| Parties | MILLIRONS . v. BLUE. |
| Court | Georgia Court of Appeals |
Rehearing Denied Feb. 19, 1934.
Syllabus by the Court.
In this action brought against Lavergue Blue and S. C. Rainey, Jr., the court properly sustained Blue's general demurrer to the amended petition and struck him as a party to the case.
Error from City Court of Macon County; C. H. Hall. Judge.
Action by Wynelle Millirons, by next friend, against Lavergue Blue and another. To review the judgment sustaining named defendant's general demurrer to the amended peti tion, and striking him as a party defendant, plaintiff brings error.
Affirmed.
The plaintiff brought a joint suit against Lavergue Blue and S. C. Rainey, Jr., for damages on account of personal injuries. Her amended petition made out the following case: On August 19, 1932, at about 8:30 p. m., the plaintiff was riding as a passenger in an automobile operated by her father. The car was being driven north on the Forsyth road, and was about eight miles from the city of Macon when the defendant Blue, driving a motorcar from the opposite direction, suddenly and negligently drove his car against the left rear part of the car in which the plaintiff was riding and which was being properly driven on the extreme right side of the road. The force of the impact knocked her father's car out of control, in that the rear end was so damaged that the ear could not be properly steered and could not be taken out of gear, and when it finally stopped it was on the extreme left side of the road in such a position that its rear was on the pavement and the car was headed north at an angle of about forty-five degrees with the paved road, the front wheels of the car resting in a small, ditch, and the headlights of the car shining against a slight embankment. The plaintiff remained in the car, and about twenty minutes after the collision with Blue's car the defendant Rainey, driving another car northward at a speed greatly in excess of forty miles an hour, suddenly drove his car against the right rear end of the car in which the plaintiff was sitting. The force of that impact knocked the car occupied by the plaintiff about twenty-two feet southward and straightened its position in such a manner as to leave it headed north and parallel to the road. When Rainey drove his car against her father's car, all the lights of the latter car, the headlights, the tail-light, and the dome light, were burning brightly, and another person in her father's car was loudly sounding the horn. The petition further alleged that on the night in question Thedefendant Blue interposed a general demurrer to the amended petition, which was sustained, and he was stricken as a party defendant, and to that judgment the plaintiff excepted.
Gilmore & Cork, of Macon, for plaintiff in error.
Ryals, Anderson & Anderson, of Macon, for defendant in error.
BROYLES, Chief Judge (after stating the foregoing facts).
The amended petition, properly construed (most strongly against the plaintiff) shows that all the injuries sued for were inflicted in the second collision--the collision with Rainey's car. It seems clear to us that the petition shows that the negligence of the defendant Blue was not the proximate cause of the plaintiff's injuries, and that her injuries were not the natural and probable consequences of Blue's negligence, but were caused by the intervening negligence of the defendant Ral-ney, a separate, independent agency, over which Blue had no control, and whose negligence and its resulting damage could not have reasonably been anticipated or foreseen by him., See, in this connection, Civil Code 1910, §§ 4509, 4510; Perry v. Central Railroad, 66 Ga. 746 (4, 5); Mayor, etc., of Macon v. Dykes, 103 Ga. 847, 31 S. E. 443; Andrews v. Kinsel, 114 Ga. 390 (2), 40 S. E. 300, 88 Am. St. Rep. 25; Shaw v. Mayor, etc., of Macon, 6 Ga. App. 306, 64 S. E. 1102; Gillespie v. Andrews, 27 Ga. App. 509 (1, 2), 108 S. E. 906; City of Albany v. Brown, 17 Ga. App. 707 (1), 88 S. E. 215; Morrison v. Columbus Transportation Co., 39 Ga. App. 708, 148 S. E. 276.
Under the foregoing ruling, the court properly sustained the defendant Blue's general demurrer to the amended petition and struck him as a party defendant. In view of this ruling, it is unnecessary to pass upon the question whether the plaintiff by the exercise of ordinary care could have avoided the injuries sued for.
Judgment affirmed.
The plaintiff, through no fault of her own, but by reason of the negligent conduct of Blue, was placed in a position of danger. Except for the alleged negligent conduct of Blue in the first place, she would not have been subjected to the danger of being struck by another car by reason of being on the wrong side of the road. Under the allegations of the petition, it certainly becomes a matter for a jury to determine whether or not the defendant: Blue's act was the proximate cause of the injury. Whether the plaintiff's conduct was, if negligent, the proximate cause of the injury, would also be for the determination by the jury. She was confronted with the danger of remaining in the car, which could not be removed until help could be obtained to move it, and which was likely to be struck by an on-coming car, or of getting out in the rain to seek shelter, which would have been dangerous to her health. If the plaintiff had accepted the last alternative and gotten out of the car in the rain and attempted to walk to shelter, and by reason of such conduct had contracted an illness, may it be said that the jury would not have been authorized in holding Blue responsible for such resultant injury, keeping in mind that the proximate cause is not necessarily the direct and immediate cause? Dunbar v. Davis, 32 Ga. App. 192, 122 S. E. 895. See, in this...
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