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TUCKER v. STAR LAUNDRY & CLEANERS, INC., et al.
TUCKER v. STAR LAUNDRY & CLEANERS, INC., et al.
37777.
37778.
Action for damages. Dade Superior Court. Before Judge Davis. April 18, 1959.
FELTON, Chief Judge.
1. The court did not err in sustaining the demurrers of Charles E. Harris and Star Laundry & Cleaners, Inc., and in dismissing the actions as to them for the reason that the negligence alleged against them in the petitions was as a matter of law not the proximate cause or a concurring proximate cause of the injuries complained of.
2. The court erred in sustaining the demurrers of W. R. West and in dismissing the actions as to them for the reason that the petitions alleged that the failure to exercise ordinary care by his son who was operating a family-purpose automobile was one of the proximate causes of the injuries suffered by both plaintiffs.
Case No. 37778 is one wherein Pauline Marie Tucker seeks to recover damages for injuries caused by the negligence of the defendants which she was operating her automobile on U. S. Highway No. 11 and Georgia Highway No. 58 four miles north of Trenton, Ga., in Dade County. Case No. 37777 is a similar action by Mrs. Gertrude O. Tucker, mother of Pauline Tucker, with whom the mother was riding as a passenger. The petitions allege substantially as follows: The defendants named are: James Vernon Dorsett, who was driving the automobile which struck from the rear the automobile in which the plaintiffs were riding; Charles L. Harris was the employee of Star Laundry & Cleaners, Inc., who operated a one-half ton panel Chevrolet truck and who stopped suddenly and without signal or warning as he permitted an unidentified vehicle to turn to the right ahead of him upon proper signals; Star Laundry & Cleaners, Inc., and W. R. West, the father of Edward Russell West, age 17 years, who was operating his father's family-purpose automobile on the other side of the highway from the plaintiffs in the opposite direction. On the date and at the time set forth in the petition four vehicles were proceeding northwardly along U. S. Highway No. 11 in Dade County, Georgia, in the east or right-hand lane of said highway, the front vehicle being an unidentified vehicle; the next in line being the truck of the defendant Star Laundry & Cleaners, Inc., driven by the defendant Charles E. Harris, an employee of said company; the next in line being the vehicle owned and operated by Pauline Tucker; and the last vehicle in this line being one owned and operated by the defendant James Vernon Dorsett, who is not a defendant in error in this court. At the same time and place the vehicle of the defendant W. R. West, being driven by his son, Edward Russell West, was proceeding southwardly along said highway in his right-hand or the west lane of said highway, at a speed of 65 miles an hour. Harris was following the unidentified vehicle an unspecified distance behind; Pauline Tucker was 100 feet behind Harris traveling at a speed of 20 miles an hour; Dorsett was 50 feet behind Tucker, traveling at a speed of 65 miles an hour. The driver of the unidentified vehicle gave a signal that he was going to make a right turn about 100 feet before he made the turn. Harris followed the unidentified vehicle, driving up within a few feet of it, and stopped to permit the unidentified vehicle to make its turn, without giving any signals. The driver of the Tucker car had time to and did give lawful stop signals, and brought her car to a stop behind Harris. In spite of the signals given by Pauline Tucker, Dorsett, who was driving so fast and in such a reckless manner, ran into the rear of the Tucker car, knocking the same forward with great force into the rear of the laundry truck, and then knocked it three feet to the west across the center line of the highway and into the West car which was proceeding south in the west lane of the highway. As a result of these collisions the plaintiff received the injuries complained of.
The renewed demurrers of Star Laundry & Cleaners, Inc., and of Charles E. Harris to the petition as amended and the demurrers of W. R. West to the petitions as amended were sustained and the plaintiffs except.
1. As to the demurrers of the defendants Harris and the Star Laundry & Cleaners, Inc., we think the court properly sustained them. Negligence is not actionable unless it is the proximate or concurring proximate cause of the injuries received. Georgia Power Co. v. Blum, 80 Ga. App. 618, 628 (57 S. E. 2d 18); Southeastern Liquid Fertilizer Co. v. Mock, 92 Ga. App. 270 (88 S. E. 2d 531). Under the allegations of the petition Harris' negligence in stopping his truck suddenly and without warning was not a concurring proximate cause of the injuries sued for. After the alleged negligence of Harris was complete and static the driver of the automobile in which the plaintiffs were riding avoided the consequences of Harris' alleged negligence by bringing her automobile to a complete stop before striking the vehicle which Harris was driving. She gave the proper signals and proper warning to vehicles behind her on the highway. Under these circumstances the negligence of Harris, if any, was too remote to constitute a concurring proximate cause of the injuries. One of the principle proximate causes of the injuries alleged was the negligence of Dorsett in not having his automobile under control and stopping it in the exercise of ordinary care upon signal by the driver of the Tucker car. The court did not err in sustaining the demurrers of Harris and the Star Laundry & Cleaners, Inc.
2. The court erred in sustaining the demurrers of W. R. West to the petition as amended. As to West, the petition alleged that the son of W. R. West was driving at an illegal rate of speed of 65 miles an hour; that the highway was heavily traveled and that at the time of the collision traffic was heavy; that West saw, or could have seen had he been looking, that the Tucker vehicle was knocked into his lane of traffic and that he had ample time to slow down his vehicle, to stop the same or to have turned to the right and onto a wide dirt shoulder by one of which courses of conduct he could have avoided colliding with the Tucker vehicle. It does not appear from the petition that Dorsett's collision with the Tucker automobile and the collision of the West automobile with the Tucker automobile were approximately instantaneous or so nearly so as to show on the face of the petition that the driver of the West automobile could not have avoided running into the Tucker automobile by the exercise of ordinary care. The driver of the Tucker automobile was not guilty of any negligence whatsoever, so far as the petition shows, and the same applies to her mother who was riding in the car with her. The petition sufficiently alleges that one of the concurring proximate causes of the injuries sued for was the negligence of Edward Russell West, it being alleged, as already stated, that he could have avoided striking the Tucker automobile by the exercise of ordinary care after he discovered its presence in his lane of traffic or after he could have discovered it by the exercise of ordinary care. The court erred in sustaining the demurrers of W. R. West and in dismissing the action as to him.
Judgments on the demurrers of Harris and Star Laundry & Cleaners, Inc., are affirmed and the judgments sustaining the demurrers of W. R. West are reversed.
Judgment affirmed in part and reversed in part. Quillian and Nichols, JJ., concur.
McClure & Hale, Noone & Noone, contra.
Frank M. Gleason, for plaintiffs in error.
DECIDED SEPTEMBER 14, 1959.
Saturday May 23 00:58 EDT


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