Opinion
40133.
DECIDED JULY 15, 1963.
Action for damages. Americus City Court. Before Judge Smith.
Smith Undercofler, Wm. E. Smith, Laurie Hargrove, for plaintiff in error.
R. L. LeSueur, Jr., H. A. Wilkinson, contra.
1. (a) Where separate and independent acts of negligence of several combine naturally and directly to produce a single injury, even though voluntary or intentional concert is lacking, the tortfeasors may be sued jointly, despite the fact that the injury might not have been sustained had only one of the acts of negligence occurred.
(b) Where a situation exists as in 1 (a), it is not necessary that all of the tortfeasors be sued; for it is the rule that where several concurrent causes operate to produce an injury, there may be a recovery against all, some or any one of the responsible parties.
(c) The petition here is not subject to the construction that, as a matter of law, the alleged acts of negligence which may be attributable to the host driver were the sole proximate cause of the guest's injuries regardless of the negligence of the defendant.
(d) Where a plaintiff sues only one of several tortfeasors, and where the petition is subject to the construction that their separate negligence combined naturally and directly to cause plaintiff's injuries, the plaintiff is entitled to recover from the one defendant an amount commensurate with all of her injuries without diminution in the amount of her verdict because of the concurring negligence of those not sued.
DECIDED JULY 15, 1963.
The petition alleged that on January 28, 1962, at 10:30 p. m., the plaintiff was injured in certain particulars while riding as a guest passenger when the vehicle was struck by defendant's train at a highway-railroad crossing maintained by the public and one well known as a public crossing; that petitioner had no control over the movements of the driver in operating the automobile; that she was in no way contributorily negligent; that she exercised the ordinary care required of a passenger in the automobile; and could do nothing to avoid the collision and the consequent injuries to herself; that there were no obstructions to vision at the crossing at the time of the collision; that defendant's engineer could see down the road for a distance of 500 feet in either direction; that the driver of the car had its head lights burning; that weather conditions were such that the engineer should have seen the approaching vehicle; that defendant was operating the train in a negligent manner and contrary to Code Ann. § 94-506 by failing to keep and maintain a constant and vigilant lookout along the track approaching the crossing in order to avoid injury to any person or property; that defendant's engineer did not blow a whistle or sound a horn or bell to give warning of the approaching train as required by Code Ann. § 94-506; that defendant's engineer was operating the train at a rate of 50 m.p.h. which is an excessive and dangerous rate of speed across a heavily traveled crossing such as the one where plaintiff was injured; that the defendant failed to maintain gates, automatic signals or other proper warning devices at the heavily traveled crossing; that she incurred hospital and medical bills of $76.80 for treatment of her injuries and will continue to incur additional medical expenses in the future; that the injuries to petitioner's knee and hand are permanent and will continue to handicap and maim her for the remainder of her life; that her damages and injuries were proximately caused by the defendant's negligence in the stated particulars.
The defendant demurred generally and specially to the petition. After hearing, the trial judge sustained the general demurrer and dismissed plaintiff's petition. It is to this judgment only that exceptions are brought.
It is not clear from the record whether the trial judge entered judgment on the special demurrers, but if he did, no exceptions protesting them were brought to this court.
The petition is subject to the construction that it alleges some acts of negligence combining directly to produce the plaintiff's injuries which may be attributable to the driver of the automobile in which she was riding as a guest passenger, who is not sued as a defendant in the cause, as well as being attributable separately to the railroad company which is named in the action as the sole defendant. This situation, however, does not render the petition subject to general demurrer for the reason that "even though voluntary, intentional concert is lacking, if the separate and independent acts of negligence of several combine naturally and directly to produce a single injury, they may be sued jointly, despite the fact that the injury might not have been sustained had only one of the acts of negligence occurred." Scearce v. Mayor c. of Gainesville, 33 Ga. App. 411 (3) ( 126 S.E. 883); Atlantic C. L. R. Co. v. Strickland, 87 Ga. App. 596, 603 ( 74 S.E.2d 897). "Nor is it necessary in such case that all of the alleged tortfeasors should be sued; for it is the rule that where several concurrent causes operate to produce an injury, there may be a recovery against all or any one of the responsible parties." Williams v. Grier, 196 Ga. 327, 337 ( 26 S.E.2d 698); Wall v. Wall, 176 Ga. 757 (1) ( 168 S.E. 893); Finley v. Southern R. Co., 5 Ga. App. 722, 728 (3) ( 64 S.E. 312); Hawkins v. Benton Rapid Exp., 82 Ga. App. 819, 822 (1) ( 62 S.E.2d 612); and see Hathcock v. Georgia N. R. Co., 90 Ga. App. 533 ( 83 S.E.2d 329).
In addition to the allegations of negligence which may be attributable to the host driver as well as to the defendant railroad company and which several acts may be construed as combining directly to produce the plaintiff's injuries, the petition alleges other acts of negligence proximately contributing to plaintiff's injuries which must be construed as applying only to the defendant railroad. Among these are: the failure of the defendant's engineer to sound a warning of two long blasts, one short blast, and one long blast loud and distinct as required by Code Ann. § 94-506; by the failure of the defendant's engineer to keep and maintain a constant and vigilant lookout ahead in approaching the crossing in violation of Code Ann. § 94-506; and in operating defendant's train "at the rate of 50 miles per hour, which is an excessive and dangerous rate of speed across a heavily traveled crossing, such as the one involved in this collision."
Obviously, the petition here is not subject to the rule applied in Davis v. Tanner, 75 Ga. App. 296 ( 43 S.E.2d 165), and similar cases to the effect that, as a matter of law, the alleged acts of negligence which may be attributable to the host driver were such as to constitute the sole proximate cause of the guest's injuries regardless of the negligence of the railroad company.
We are not concerned here with a situation where the injured plaintiff was the driver, or one where the negligence of the driver is imputable to an injured passenger. The absence of these factors is affirmatively acknowledged by the defendant in its brief. Rather, we do have here a petition which alleges acts of negligence similar to those in cases cited with approval and which are expertly discussed by our late esteemed colleague, Judge Townsend, in Atlantic C. L. R. Co. v. Coxwell, 93 Ga. App. 159, 161-166 ( 91 S.E.2d 135). In Coxwell, Judge Townsend quoted and applied the statement of Judge Jenkins found in McGinnis v. Shaw, 46 Ga. App. 248 ( 167 S.E. 533): "2. Where two concurrent causes operate directly in bringing about an injury, there can be a recovery against either one or both of the responsible parties. The fact that the injury would not have been sustained had only one of the acts of negligence occurred will not of itself operate to define and limit the other act as constituting the proximate cause, for if both acts of negligence contributed directly and concurrently to bringing about the injury, they together constituted the proximate cause." After this quote, Judge Townsend, with the full accord of all of the judges of the court, wrote on page 164 of Coxwell the holding there to be that, "the petition in this case sets out a cause of action against both the driver of the host automobile and the railroad company, and a jury question is posed as to whether either or both was negligent, and whether if both were in fact negligent, their negligence concurred in causing the injuries sustained, the plaintiff guest himself not being guilty of such negligence as to bar recovery, and the negligence of the driver not being imputable to the plaintiff." While we have only the one defendant in this case, the host driver not having been sued, this principle of law applies to the petition here and governs our decision. Both Coxwell and McGinnis, together with the numerous other authorities dealing with the right of the plaintiff to sue and recover from only one of several tortfeasors where their separate negligence combined naturally and directly to cause plaintiff's injuries, clearly show that in such a case the plaintiff might recover from the one defendant an amount commensurate with all of her injuries for which she is entitled to sue without diminution in the amount of her verdict because of the concurring negligence of those not sued. Gooch v. Georgia Marble Co., 151 Ga. 462 ( 107 S.E. 47); Central of Ga. R. Co. v. Macon R. c. Co., 9 Ga. App. 628 ( 71 S.E. 1076).
The petition stated a cause of action as against general demurrer.
Judgment sustaining the general demurrer and dismissing the petition reversed. Carlisle, P. J., and Hall, J., concur.