Scott v. Edwards, 23945.

• Decision Date: 12 January 1935
• Docket Number: No. 23945.,23945.
• Citation: 50 Ga.App. 373,178 S.E. 175
• Parties: SCOTT. v. EDWARDS.
• Court: Georgia Court of Appeals

50 Ga.App. 373

178 S.E. 175

SCOTT.

v.EDWARDS.

No. 23945.

Court of Appeals of Georgia, Division No. 1.

Jan. 12, 1935.

Syllabus by the Court.

It appearing from the allegations of the petition that the proximate cause of the collision was the independent act of the defendant McKendree, unmixed with any negligence alleged against the other defendant, Scott, the court erred in overruling Scott's general demurrer to the petition.

Error from City Court of Swainsboro; Alfred Herrington, Jr., Judge.

Suit by Clarence Edwards against W. F. Scott and another. To review a judgment overruling his demurrer to the petition, named defendant brings error.

Reversed.

William Brunson and Burch & Daley, all of Dublin, and Price & Spivey, of Swainsboro, for plaintiff in error.

Felix C. Williams, A. S. Bradley, and P. W. Bradley, all of Swainsboro, for defendant in error.

MacINTYRE, Judge.

Clarence Edwards brought an action for damages in Emanuel county against Johnnie McKendree, of said county, and W. F. Scott, of Thomas county. McKendree made no defense to the suit, but Scott filed both an answer and a demurrer. The only question for determination is whether or not the court erred in overruling Scott's demurrer to the petition as amended.

It appears from the petition that, on January 23, 1933, the plaintiff, driving two mules hitched to a two-horse wagon, and traveling in a westerly direction, entered upon a bridge spanning Big Canoochee river on a much-traveled public highway; that Scott, who was under a contract with the state highway board of Georgia to widen and repair said bridge, had left his "vacant and unguarded" truck parked "on the south side of said bridge * * * near the eastern end thereof * * * headed eastwardly, " and leaving "only a distance of seven feet and six inches from" its left wheels "to the northern and unguarded side of said bridge"; that, as plaintiff was turning to his right to go around said truck, another truck, driven by Johnnie McKendree "in a careless and reckless manner and at a high rate of speed, " hit and "knocked plaintiff and * * * plaintiff's wagon" through the insecure railing constructed "by Scott on the right side of the bridge, precipitating them into the stream below and inflicting described injuries; that "from the position of plaintiff's wagon on the bridge, and from the position of the truck of the defendant Scott on the bridge, at the time * * * McKendree came over the crest of the hill • * * and down the grade toward the eastern approach to said bridge, it appeared to the defendant McKendree that both vehicles were in motion and in process of passing in an orderly manner, and one which would have provided a clearance through which the truck * * * of McKendree could have passed had the truck of * * * Scott been in motion"; that McKendree "continued to advance down the grade toward the eastern approach toward the bridge in a reckless and negligent manner and at a high rate of speed until he reached a position from which he could observe that the truck of the defendant Scott was not in motion, and at that time the defendant McKendree applied his brakes in an effort to avoid the collision, * * but by reason of his prior negligence was unable to avoid the collision, his truck then being so close to your petitioner and so heavily loaded, and had been traveling at such a rapid and negligent rate of speed that the defendant McKendree was unable to avoid the results of his own negligence, which, concurrently with the negligence of the defendant Scott, caused the damage * * * set forth"; and that the "acts of negligence of the said McKendree and the said Scott herein specified contributed directly and concurrently in bringing about petitioner's injury."

The acts of negligence specified as the proximate cause of the collision are as follows: (a) Scott's negligence "in leaving the northern side of said bridge without guard rail sufficient to protect the public traveling thereon"; (b) Scott's negligence "in permitting an unguarded, unoccupied truck to be parked on the bridge aforesaid, in the condition herein stated, leaving only sufficient passageway for one vehicle carefully driven, and thereby creating a needless and unnecessary hazard to the traveling public, when such truck could and should have been driven off of said bridge a few feet onto the shoulder of the bridge approach, which would, therefore, have created a situation of entire safety to the traveling public and to your petitioner"; (c) Scott's negligence "in failing to place warning signs or signals, or to have watchmen at safe and proper distance from said bridge to warn public or any one driving a vehicle thereon of its dangerous condition and of the hazard created by the parking of said unoccupied truck"; (d) McKendree's negligence "in operating his track upon a public highway of this State in a reckless and dangerous manner at a high and excessive rate of speed"; (e) McKendree's negligence "in approaching said bridge without having his loaded truck under control so that he was unable to retard and stop the said truck in time to avoid striking the vehicle in which petitioner was riding after the negligence of the defendant Scott, as aforesaid, and petitioner's peril had become apparent to him"; (f) McKendree'snegligence "in operating a...