Shepherd v. Amos
| Decision Date | 09 May 1947 |
| Docket Number | 31573. |
| Citation | 42 S.E.2d 775,75 Ga.App. 221 |
| Parties | SHEPHERD et al. v. AMOS et al. |
| Court | Georgia Court of Appeals |
Rehearing Denied May 29, 1947.
SYLLABUS BY THE COURT.
1. A petition alleging that the negligence of two defendants, in operating an automobile over a public highway in a reckless dangerous and unlawful manner, concurred and joined with the negligence of another defendant, who had negligently stopped or parked her car on and partly across the highway at an intersection under the crest of a hill at night, thereby proximately causing or contributing to the accident wherein the plaintiff was injured, set out a cause of action against the two defendants as against their general demurrers, although the accident might not have occurred except for the negligence of the other defendant in stopping or parking her car under the circumstances alleged.
(a) Under the allegations of the petition, whether the two defendants were guilty of negligence in any of the particulars charged, and, if so, whether the concurrent acts of negligence of the other defendant and of the two defendants, or the separate acts of negligence of any one or more of the defendants, constituted the proximate cause of the plaintiff's injury, was an issue of fact for a jury.
2. The petition, alleging that the plaintiff had been injured by the concurring acts of negligence of three defendants, whose negligence it was alleged joined directly to produce the single injury complained of, was not subject to special demurrers by two of the defendants that there was a misjoinder of parties defendant and of causes of action.
3. The petition set out a cause of action and was not subject to the demurrers urged against it, and the court did not err in overruling the demurrers thereto.
Miss Mary Amos sued Dan Plunket Shepherd, W. C. Shepherd and Miss Helen Jackson Verner in the Superior Court of DeKalb County seeking to recover damages in the sum of $50,000 for personal injuries sustained as the result of the negligence of the defendants. The allegations of her petition were substantially as follows: On March 6, 1946, at about 7:45 o'clock, P.M., plaintiff was riding as a guest in an automobile operated by Willie Jackson Williams in an easterly direction over U.S. highway No. 78 in Walton County; at a point on said highway approximately 4 miles west of Monroe the old Alcovy Church road intersects with the highway and runs therefrom in a southerly direction; a short distance west of this intersection, the highway passes over a hill and the approach from that point to the intersection is downgrade; at this intersection, the defendant, Helen Jackson Verner, had stopped her automobile on the highway, her car being headed into the old Alcovy Church road and was across and completely blocked the southern side of the highway; although it was after dark, there were no lights on said automobile or on the highway in the vicinity of the automobile which were visible to traffic approaching from the west; as the automobile in which plaintiff was riding approached the intersection along the right hand side of the highway, the lights of the automobile were on and were functioning properly, but due to the hill over which the automobile passed a short distance to the west of the intersection and said down grade of the highway, the headlights did not illuminate said parked automobile until the car in which the plaintiff was riding had passed over the crest of the hill and started down the grade; as the parked car came into view, the driver of the car in which plaintiff was riding applied the brakes and turned the car to the left in an effort to avoid striking the parked car, nevertheless, the automobile in which plaintiff was riding ran into and struck the parked automobile near the rear end with considerable force and continued down the highway some 25 or 30 feet, where it came to a stop, turned across the highway; immediately thereafter and before the plaintiff and the driver of said automobile had time to alight therefrom, the defendant, Dan Plunket Shepherd, who was driving a Cadillac automobile in an easterly direction along said highway at a reckless and dangerous rate of speed, ran into and struck said automobile with great force and violence, knocking it forty feet or more down the highway and turning it completely around and demolishing it; at said time and place, the defendant, Dan Plunket Shepherd, was driving said automobile at a reckless, dangerous and unlawful rate of speed of between 65 and 70 miles per hour and he did not have said automobile under immediate control; the impact of the collision killed the driver of the car in which the plaintiff was riding and caused the plaintiff to sustain certain specified personal injuries, which were alleged to be painful, severe, serious and permanent; plaintiff was forced to incur certain specified expenses for hospitalization, doctors' services, medicines and drugs; she lost $60 from her pocket book at the time of the occurrence; that she was earning $175 per month at the time she was injured, and that she had been totally incapacitated to the time of the filing of the suit and her earning capacity will be reduced 50% for the remainder of her life; that all of plaintiff's injuries were the direct and proximate result of the joint and contributing negligence of the defendants; that the automobile operated by Dan Plunked Shepherd was the property of the defendant, W. C. Shepherd, his father and with whom he lived, and was furnished by W. C. Shepherd as a family car for the use, pleasure, comfort and convenience of the members of his family, including Dan Plunket Shepherd, and in addition thereto, the said Dan Plunket Shepherd was on business for his father, W. C. Shepherd, at said time and place and acting as his agent within the scope of his employment; that the defendants were negligent as follows: The defendant, Helen Jackson Verner, was negligent (a) in stopping her automobile on and across the public highway; (b) in stopping her car so as to block the southern side of the highway; (c) in failing to place her automobile, while not in motion, as near the right hand side of the highway as practicable; (d) in stopping her automobile within 8 feet of the center line of the highway, in violation of law; (e) in parking her automobile within 8 feet of the center line of the highway, in violation of law; (f) in failing to have a light or lights on said stopped or parked vehicle which could be readily seen by traffic approaching along said highway; (g) in failing to give the driver of the automobile in which plaintiff was riding any warning by light or other signal of the fact that said automobile was stopped or parked on and across said highway; (h) in failing to move her automobile off the highway before the car in which plaintiff was riding reached the point where the defendant's automobile had stopped; that the defendants, Dan Plunket Shepherd and W. C. Shepherd, were negligent (a) in operating said Cadillac automobile over said highway at a rate of speed greater than was reasonable and safe, having due regard for the width, grade, character, traffic and common use of said highway; (b) in operating said automobile over said highway at a greater rate of speed than 55 miles per hour in viodation of law; (c) in failing to reduce the speed of said automobile as it approached the intersection of the old Alcovy road with said highway; (d) in failing to have said automobile under immediate control at said time and place; (e) in failing to bring said automobile to a stop before striking the automobile in which plaintiff was riding; (f) in failing to drive around the automobile in which plaintiff was riding; and (g) in running into and striking the automobile in which the plaintiff was riding.
To the petition of the...
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