The trial judge did not err in overruling the general demurrer to the petition.
Mrs. Rosa White Staples filed an action for damages against George F. Pittman and Macon Brick & Block Company in Bibb Superior Court. The petition alleged in part: "That on the 16th day of June, 1954, approximately 4:30 p. m., her son, Charles White, was an invited guest and passenger in a 1941 Ford Tudor sedan, being driven by Jepty Truman Staples; that said automobile was not the property of petitioner or petitioner's son and neither petitioner nor her son was exercising any control, direction or in any way governing the operation of said automobile; that said automobile in which petitioner's son was riding was traveling north on Georgia Highway No. 247, in the direction of the City of Macon, Bibb County, Georgia, said highway being further described as the Macon-Warner Robins Highway; that the defendant, Macon Brick & Block Company, owned and used one 1951 Chevrolet tractor-trailer unit in and about their business operations, and were in fact using same in their business operations at the time and place of the occurrence of the injuries complained of in this petition; that George F. Pittman, defendant, " 'as an agent and employee of said defendant, Macon Brick & Block Company, and was in control of said tractor-trailer and was acting within the scope of his employment and about his master's business at the time and place of the occurrence of the injuries and damages complained of herein; said truck was a tractor-trailer, the body of the trailer being flat with no sides and being unloaded, and both the tractor and trailer being a faded red color, the trailer being 30 feet long and the trailer body being about 6 inches thick; because of the size, shape and color of said tractor-trailer combination, it was difficult for a motorist approaching from the rear to make a proper estimate of the distance that the rearmost portion of said tractor- trailer was from the driver approaching from the rear or to make a proper determination as to whether said tractor-trailer was in motion or not; that the defendant, George F. Pittman, in pursuance of the business of his principal, Macon Brick & Block Company, was traveling north on Georgia State Highway No. 247, traveling toward the City of Macon, county and State aforesaid, said highway being of asphalt construction and consisting of four lanes, two being used for north-bound traffic and being together about 24 feet in width, and two being used for south-bound traffic and being together about 24 feet in width, the two north-bound lanes being separated from the two south-bound lanes by an unpaved section of earth about 41 feet in width; upon reaching a point on said highway directly across from Bateman's Peach Shed, said vehicle came to a complete stop in that lane of traffic furthermost to the right of a person facing north of said highway, and was situated thereon so that all of the wheels of said tractor-trailer unit were in said lane; that defendant, Macon Brick & Block Company, through its agent Pittman did then and there abandon said tractor-trailer without moving the same; that no warning devices, either flags, signs or signals, were placed on or about said vehicle to warn approaching motorists of the fact that said tractor-trailer was stopped on and obstructing the aforesaid lane; that said highway at the time and place of the abandonment of said tractor-trailer by defendant Pittman was heavily traveled by the public, which by the exercise of ordinary care and prudence should have been known to said defendants; that at the point where the defendant Pittman stopped the tractor-trailer there was approximately 30 feet of shoulder on which a truck of the type he was driving could be parked.
"Petitioner further alleges that the automobile in which petitioner's son was a passenger was traveling at a speed of about 45 miles per hour, and that said automobile had just completed the passing of an automobile that was immediately in front of the automobile driven by Staples, and traveling in the same direction as the automobile in which your petitioner's son was a passenger, and was in the process of returning to the extreme right lane, such lane being that lane which was more completely described previously as that in which defendant's truck was stopped, said automobile which was passed by the automobile in which the plaintiff's son was riding being about 100 yards distant front the defendant's truck; that immediately after passing aforementioned automobile, and while in the process of returning to the extreme right lane as previously described, the defendant's truck was first observed by the driver of the automobile in which your petitioner's son was a passenger, said truck being at that time approximately 100 yards distant from said automobile and stopped in the negligent manner hereinbefore and hereinafter described; that the driver of the said automobile thought that the truck was moving forward in a direction away from him until he had approached within a few yards of the said truck; that said Staples had his vehicle under control and was operating same in a safe and prudent manner and did everything in his power to avoid collision when the negligently stopped tractor-trailer of the defendant became apparent to him; and, more specifically, that said Staples did remove his foot from the accelerator of the automobile which he was driving and did attempt to turn said automobile to the left and thus avoid collision with the defendant's negligently stopped tractor-trailer; that the right front portion of the Staples automobile struck the left rear end of the trailer unit which at the time and place of the impact was in the extreme right lane of the north-bound lanes in the herein described highway, with all of its wheels on the pavement at the time and place of the impact; that her son Charles White was killed as a result of the above-described collision and that the wrongful death of said Charles White was caused directly and proximately by the negligence of the defendants herein alleged; that said defendants were negligent in that they failed to park their tractor-trailer at least 12 feet from the center line of the highway, as per requirement of the Georgia law, under the Uniform Act Regulating Traffic on Highways as follows:
" 'Article 12, Section 15-A. It shall be unlawful for any person to stop or park any automobile, truck, tractor, trailer, or other motor vehicle, or horse-drawn vehicle on or along any State-aid road or highway, unless said vehicle be placed so that it is at least 12 feet removed from, the center line of such State-aid road or highway, and such vehicle shall be so parked that no portion thereof shall be within 12 feet of the center line of such State-aid road or highway.'
"The collision and the death of petitioner's son was caused by the negligence of the said defendants in the following particulars: (a) In that defendants stopped their truck unit on a congested highway in a manner so as to obstruct the free flow of traffic thereon; (B) In that defendants parked their truck as aforesaid less than 12 feet from the center of said highway in violation of law, which is negligence per se; (C) In that they failed to place any signals, flags, signs, or warning devices so as to warn approaching motorists of the parked vehicle on the highway; and that the direct and proximate cause of the collision and death of petitioner's son was the negligence of the defendants hereinbefore set out, that the deceased was free from any fault or negligence whatsoever and in no way could have avoided the results of defendants' negligence."
The defendants filed general and special demurrers to the petition which were overruled. The defendants excepted and the case is here for review.
This is a case where a non-negligent guest passenger was killed in a collision between the automobile of his host driver and a truck parked on the highway. The defendant, George F. Pittman, who parked the truck, according to the allegations of the petition, within 12 feet of the center of the highway, a State-aid road, and Macon Brick & Block Company who was under the doctrine of respondeat superior responsible for his conduct filed a general demurrer to the petition.
The contention is not that the place and manner in which the truck was left upon the highway was lawful or prudent but that the petition disclosed that the action of the host driver in not keeping a lookout and in not discovering that the truck was standing and not as he supposed, moving along the highway in the direction he was traveling, constituted the sole proximate cause of the collision resulting in the deceased's fatal injuries.
In this opinion it will be assumed but not decided that the petition did affirmatively disclose negligence on the part of the host driver in not observing the defendant's truck from a considerable distance as he approached it, and that he could by the exercise of ordinary or even slight care have discovered that it was not moving and thus have avoided the collision. It is likewise, for the purpose of analysis of the factual situation described in the situation accepted that the host driver failed to observe the requirements of Code (Ann. Supp.) 68-1670 (15) that he keep a lookout ahead of his automobile while operating it upon the public thoroughfare.
While it is true that one who is imprudent is not bound to anticipate that a dormant condition or danger created by his negligence will be activated by a criminal act, the rule is stated in the case of Bozeman v. Blue's Truck Line, 62 Ga. App. 7, 10 (7 S. E. 2d 412): "The principle that one tort-feasor will not be liable where the injury sustained is caused by an independent criminal act of a third person which is the direct and proximate cause of the damage ( Andrews v. Kinsel, 114 Ga. 390 (2), 40 S. E. 300, 88 Am. St. R. 25), so far as we have been able to ascertain, refers to deliberate acts which are mala per se. It does not contemplate an act which may be found to be due to negligence, although it may be malum prohibitum. The reason is that one is not ordinarily charged with the duty of anticipating acts mala per se, but there are exceptions to this rule, and one tort-feasor can not escape his own liability by simply showing that another has been guilty of a crime malum prohibitum, when he himself has been guilty of a similar crime." So it must be concluded that the host driver's conduct simply because it constituted the violation of a public law, was not of such nature as to relieve the defendants of the consequence of their unlawful act in leaving the truck parked upon and within 12 feet of the center of the highway.
In order for the host driver's negligence to insulate the defendants from liability it must have been such as the defendants could not have reasonably anticipated at the time they created the perilous situation by leaving the truck standing on the high way. Atlantic Coast Line R. Co. v. Coxwell, 93 Ga. App. 159
(91 S. E. 2d 135).
It clearly appears from the averments of the petition that the negligence of the host driver was such as should have been reasonably apprehended by the defendants. One prominent reason why leaving a truck parked on the traffic portion of a highway is dangerous is that vehicles following others may not until they undertake to pass one that precedes them, become aware that they are in too close proximity to the parked truck or automobile standing in the roadway to avoid colliding with it.
Another rule is that the nature of default on the most driver's part that would intervene to relieve the defendants from liability must be a failure to exercise ordinary care to avoid the defendants' negligence after he discovered its existence, that is, after he discovered that the truck was parked on the highway and that it was not, as he supposed, moving along the highway. "One who acts negligently is not bound necessarily to anticipate that another person will be negligent after the latter has discovered the danger arising from the former's negligence. The first actor, however, is not permitted to assume that the second actor will discover the danger caused by the first actor's negligence. Accordingly, where the second actor, after having become aware of the existence of a potential danger created by the negligence of the first actor, acts negligently in respect of the dangerous situation and thereby brings about an accident with injurious consequences to others, the first actor is relieved of liability, because the condition created by him was merely a circumstance and not the proximate cause of the accident. However, if the second actor does not become apprised of the danger arising from the first actor's negligence until after his own negligence, added to the existing peril, has made an accident with injurious consequences inevitable, both actors are liable, since the negligence of the one concurs with the negligence of the other proximately to cause the injury . . ." 38 Am. Jur. 731, 72. We conclude that if the petition showed the host driver to be negligent, that negligence was not of such nature as to constitute the sole proximate cause of the collision between his automobile and the defendants' truck. The petition set forth a cause of action and was not subject to general demurrer.
ON MOTION FOR REHEARING.
On motion for rehearing the defendant makes the contention that the section of Code (Ann. Supp.) 68-1670 Which prohibits the parking of motor vehicles within 12 feet of the center line of a State-aid road or highway should be construed when applied in a case where the parking is on one of the roadWays of a four-lane highway to be the center line of the space between the two roadways. The contention is not tenable and to rule that it is correct would be under the Code section requirements an absurdity. This is true because if we construe the statute as it is insisted by the defendant to refer to the center of the space between the two roadways one could park a truck in the very center of the traveled portion of such road and still comply with the statute as it is construed by the defendant.