Opinion
43259.
ARGUED JANUARY 5, 1968.
DECIDED JANUARY 15, 1968.
Action for damages. Fulton Superior Court. Before Judge Tanksley.
N. Forrest Montet, for appellant.
Arnall, Golden Gregory, Cleburne E. Gregory, Jr., Elliott H. Levitas, Alston, Miller Gaines, Floyd T. Whitaker, John K. Train, III, Neely, Freeman Hawkins, Ben G. Harper, for appellee.
1. "Negligence on the part of one alleged to be a joint tortfeasor is not too remote as a matter of law to enter into the proximate cause of injury inflicted on a non negligent plaintiff if the tortfeasor might reasonably have anticipated that, as a result of his own negligence in creating a dangerous situation, the negligence of another, operating in conjunction with his own negligent act, would cause injury to the plaintiff." Washington v. Kemp, 97 Ga. App. 235 (2) ( 102 S.E.2d 910).
2. "One who is himself violating the traffic laws of this State is not entitled to the benefit of the presumption that other persons traveling along the road will observe such laws, but must anticipate that others, like himself, will be negligent in respect thereto." Id., Hn. 3.
3. "Accordingly, a petition alleging that the demurring defendant stopped his automobile on" an expressway "in such manner as to block traffic following him, in violation of law," that the vehicle immediately behind was able to pass in the lane to the right, "that the plaintiff [the second car behind the demurring defendant] . . . was forced to halt behind the defendant's vehicle (being unable to pass because of oncoming traffic) and that a fourth" and fifth "vehicle, traveling" at a rapid rate of speed in excess of the speed limit, "crashed into the line of cars and inflicted injury on the plaintiff, sufficiently presents a jury question both as to whether the demurring defendant was negligent and, if so, whether his negligence concurred with that of the co-defendant[s] in inflicting the plaintiff's injuries." Washington v. Kemp, supra, Hn. 4.
4. Whether or not there are distinguishing characteristics in the case of Tucker v. Star Laundry Cleaners, Inc., 100 Ga. App. 175 ( 110 S.E.2d 416), we do not determine. If there are no distinguishing characteristics, the case of Washington v. Kemp, supra, being an older case and a case decided by six judges, is controlling and must be followed.
5. The trial court did not err in overruling the general demurrer of the defendant Dills to the plaintiff's petition.
Judgment affirmed. Jordan, P. J., and Deen, J., concur.
ARGUED JANUARY 5, 1968 — DECIDED JANUARY 15, 1968.
The plaintiff, L. E. Cooper, brought an action seeking recovery of damages arising out of an automobile collision pile up on the Northeast Expressway in the city limits of Atlanta, Fulton County, Georgia, against William Owen Dills, the Hyatt Corporation of America, a corporation, Edward G. Sullivan, the Citizens Southern National Bank, a national banking association organized under the laws of the United States, and John R. Peters. The petition alleged that on February 21, 1967, at about 8:35 p. m. plaintiff was driving his 1967 Porsche two door hardtop automobile in a southerly direction on the Northeast Expressway, south of Lenox Road and within the city limits of the city of Atlanta, and that at said time and place the expressway was in heavy use by vehicular traffic and at that place was designed and marked for four lanes of traffic, two lanes for northbound traffic, two lanes for southbound traffic, that plaintiff's automobile was entirely within the left lane next to the median on said expressway while traveling in a southerly direction; that the defendant, William Owen Dills, was driving a 1965 Chevrolet let pick-up truck in a southerly direction in the left lane next to the median of said Northeast Expressway in front of plaintiff's automobile, and there was another automobile between Dills' pick-up truck and plaintiff's automobile; that Sullivan, employed by the Hyatt Corporation of America and in the course of his employment was driving a 1967 Pontiac four door hardtop automobile owned by the Hyatt Corporation of America in a southerly direction in the left lane next to the median on said expressway and behind plaintiff's automobile; and that defendant, John R. Peters, an employee of the Citizens Southern National Bank, while in the course of his employment was driving a 1966 Pontiac four door sedan, owned by the Citizens Southern National Bank in a southerly direction next to the said median on said expressway behind the automobile owned by the Hyatt Corporation of America and driven by the defendant, Sullivan; that at said time and place the defendant Dills suddenly stopped his said Chevrolet pick-up truck so that it blocked the left lane of the Northeast Expressway in which plaintiff was driving and the automobile between the said Chevrolet pick-up truck and the plaintiff's automobile avoided the stopped pick-up truck by suddenly swerving into the right lane of the expressway, but plaintiff was prevented from changing lanes by the line of traffic in the right lane; plaintiff brought his automobile to a complete stop approximately seven feet behind the stopped Chevrolet pick-up truck driven by the defendant Dills and before stopping and after he had stopped the plaintiff's brake lights were showing and after stopping the emergency blinker lights were on; that the automobile driven by the defendant, Sullivan, did not appropriately reduce its speed and the front end of that automobile struck the automobile of plaintiff and knocked it into the Chevrolet truck of the defendant Dills, and the same thing in turn occurred with the automobile driven by the defendant Peters. It was further alleged that both the cars in the rear of the plaintiff were exceeding the speed limit effective at that time and place on said expressway. It was further alleged that the stopping of the Chevrolet truck by the defendant Dills was in violation of a municipal ordinance of the city of Atlanta providing that "no person shall stop, stand, or park a vehicle, except when necessary to avoid conflict with other traffic or in compliance with law or the direction of a police officer or traffic control device in any one of the following places. . . upon all limited access highways. . ." It was further alleged that the defendant Dills did not stop because it was necessary to avoid conflict with other traffic, nor in compliance with law or the direction of a police officer or traffic control device. The defendant Dills was charged with negligence "(a) [i]n stopping his Chevrolet pickup truck on said Northeast Expressway; (b) [i]n stopping his Chevrolet pickup truck in such a manner that it completely blocked the southbound lane next to the median of the said northeast Expressway; (c) [i]n suddenly stopping his said Chevrolet pickup truck so that it blocked one lane of the Northeast Expressway during a period of heavy traffic on said expressway; (d) [i]n negligently stopping his vehicle on a limited access highway when it was not necessary to avoid conflict with other traffic or in compliance with the law or the direction of a police officer or traffic control device, in violation of a valid and subsisting ordinance in the City of Atlanta, Georgia, Section 18-236 (a) (18), which plaintiff charges is negligence per se." The other defendants were charged with failing to reduce speed, failing to stop, failing to keep their automobiles under immediate control, failing to keep a proper lookout, following too closely, driving in excess of the speed limit, etc. It was alleged that the injury and damage sustained by the plaintiff was the proximate result of the concurring acts of negligence of all the defendants whose negligence combined naturally and directly to produce the said injury and damages to the plaintiff. The defendant Dills' general demurrer to the petition was overruled and he appeals to this court enumerating this ruling as error.