Opinion
32769.
DECIDED JANUARY 6, 1950.
Action for damages; from Claxton City Court — Judge Cowart presiding. August 15, 1949.
C. O. Purcell, for plaintiff.
Dan S. Cowart, for defendants.
The petition in this case was not subject to the general demurrers of the plaintiffs in error. It did not show on its face that the negligence of the other defendant sued was the supervening cause of the injuries sued for and that the negligence of all defendants did not combine naturally and directly in causing the injuries or that the plaintiff is barred by contributory negligence.
DECIDED JANUARY 6, 1950.
C. C. Kennedy sued J. C. Durrence, Ham Chevrolet Company and K K Chevrolet Company for damages in the City Court of Claxton. The amended petition alleged substantially the following: that at about 7 p. m. on February 16, 1949, the plaintiff's son was driving the plaintiff's 1948 Oldsmobile automobile east on Railroad Avenue in the City of Claxton; that at the same time the defendant Durrence had parked a Mercury automobile directly across said street blocking the entire right-hand side of such street; that said Mercury automobile while in such position had no lights or warning of any description directed towards the approaching vehicle of the plaintiff; that at such time it was raining and was impossible for the plaintiff's son to see or know that the defendant Durrence had negligently blocked said street until he was too close to Durrence's vehicle to stop the plaintiff's vehicle in order to avoid a collision; that the plaintiff's son after discovering the street blocked by the defendant Durrence's vehicle, swerved to the left a sufficient distance to avoid striking such vehicle; that almost immediately opposite Durrence's vehicle there was a Chevrolet truck owned by the defendant K K Chevrolet Company parked upon said street with the rear of said truck extending out several feet upon the street and blocking the left side of the street; that the defendant K K Chevrolet Company was the owner of the truck and that the defendant Ham Chevrolet Company was actually in possession and control of the truck and did park the truck upon the street in a negligent, unlawful and wrongful manner; that said truck was parked upon the street by Ham Chevrolet Company with the knowledge, consent and at the direction of K K Chevrolet Company pursuant to a contract between Ham Chevrolet Company and K K Chevrolet Company, the exact terms of which were unknown to petitioner but which were well known to defendants Ham Chevrolet Company and K K Chevrolet Company; that in order to avoid a collision with the vehicle of Durrence, the plaintiff's son swerved the plaintiff's vehicle to the left side of the street and thus collided with the rear of the truck of K K Chevrolet Company; that the truck had no lights or other warning signal attached to warn the plaintiff's son that the truck was negligently and wrongfully parked; that at the time of the collision the plaintiff's son was driving and operating the plaintiff's automobile at a lawful and reasonable rate of speed, using all diligence and care to avoid a collision; that because of the negligence of the defendants it was impossible to avoid a collision after the negligence of the defendants was discovered by the plaintiff's son; that because of such negligence on the part of the defendants, the plaintiff was injured and damaged in the amount of $339.25; that after discovering the negligence of the defendants, the plaintiff's son used all the care and caution at his command to avoid said injury and damage; that the negligent acts of all defendants were the sole and proximate cause of said injury and damage; that the defendants were wrongful and negligent in parking the Mercury automobile directly across the right-hand side of said street in violation of the law, and completely blocking said driveway; by failing to have any lights or other warning signals upon said Mercury automobile as required by law to give users of said street warning that such vehicle was blocking the street; by parking said Chevrolet truck upon the wrong or left-hand side of the street, in violation of the law; by parking said Chevrolet truck so that the same extended out into said street blocking the driveway; by parking said Chevrolet truck upon the street without placing thereon any lights or other signals, as required by law, to warn users of said street that said vehicle was so negligently and wrongfully parked upon said street. The defendants Ham Chevrolet Company and K K Chevrolet Company severally filed their general demurrers to the petition on the ground that no cause of action was stated therein. The trial court sustained the demurrers and the plaintiff excepts.
Except in plain and indisputable cases the questions of negligence, proximate cause and contributory negligence are questions for a jury. It does not appear from the petition as a matter of law that the act of the defendants was not negligent or that if it was it was not a concurring proximate cause of the injuries, or that the plaintiff was barred by his own negligence. If two acts of negligence are material factors in producing an injury and are closely connected with it, and one has not so intervened as to make it the preponderating cause, the two negligent actors are guilty of concurring negligence. The petition does not show that the truck of the defendants was parked first so as to bring into play the principle that the act of the other defendant might have been the preponderating cause by reason of the fact that he parked his automobile with the act of the other two defendants consciously before him. Callahan v. Cofield, 61 Ga. App. 780 ( 7 S.E.2d 592). See also Scearce v. Gainesville, 33 Ga. App. 411 ( 126 S.E. 883), and cit; Bonner v. Standard Oil Co., 22 Ga. App. 532 ( 96 S.E. 573); Locke v. Ford, 54 Ga. App. 322 ( 187 S.E. 715); Longino v. Moore, 53 Ga. App. 674 ( 187 S.E. 203); Jones v. Wadley, 50 Ga. App. 351 ( 178 S.E. 172). The cases relied on by defendants in error, such as Cain v. Georgia Power Co., 53 Ga. App. 483 ( 186 S.E. 229), and Grier v. Williams, 68 Ga. App. 863 ( 24 S.E.2d 509), are distinguishable in that in those cases it was held that as a matter of law the injury was not caused by the negligence of the defendant in whose favor the court ruled, but by a supervening cause. There being no special demurrers, we think the petition was good as against general demurrers and that it is a question for a jury as to whether negligence of the defendants in error or the other defendant or both was the proximate cause of the injuries. Russell v. Central of Georgia Ry. Co., 119 Ga. 705 ( 46 S.E. 858), Milton v. Mitchell County Elec. Membership Assn., 64 Ga. App. 63 ( 12 S.E.2d 367), Hudgins v. Coca-Cola Bottling Co., 122 Ga. 695 ( 50 S.E. 974), and cit. Many other cases to the same effect have been decided by both this court and the Supreme Court.
The court erred in sustaining the demurrers.
Judgment reversed. Sutton, C. J., and Worrill, J., concur.