Floyd v. Williams

Jenkins, P. J. A guest sued jointly the owner of the automobile who was driving the car in which the plaintiff was riding, [558] and the owner and the driver of a second automobile, for injuries received by reason of the alleged concurrent acts of negligence of the two drivers in causing a head-on collision. The injury occurred at night on a State highway. It was pleaded that the driver of the second car was traveling sixty miles an hour, and was on the left of the center line of the highway, both in violation of State laws; that the owner of the automobile occupied by the plaintiff was traveling sixty miles an hour; that the lights on both cars were burning brightly and were plainly visible to each of the defendants as he approached the other; that the defendant, who was host of the plaintiff, pulled to the left in passing another automobile, moving more slowly in the same direction in which he was going, and collided with the car of the other defendants just as the host passed the slower automobile and before he straightened the course of his car so as to reach a position to the right of the center of the highway, the left front part of his automobile colliding with the front and left side of the automobile of the other defendants. In addition to charging the acts of all the defendants as negligence per se, the petition as amended charges the acts of the defendant host as gross negligence. That defendant demurred on the grounds that the petition stated no cause of action, that there was no sufficient averment of gross negligence, that there was a misjoinder of defendants and of actions, and because no joint act of negligence was shown. Error was assigned on the overruling of the demurrer. The questions presented by the demurrer and argued by the plaintiff in error are determined, adversely to his contentions, by the rulings in Longino v. Moore, 53 Ga. App. 674 (187 S. E. 203), and cit. Whether all of the alleged acts of the defendant host, in traveling sixty miles an hour, passing the second car, and pulling to the wrong side of the highway, all without lessening such high rate of speed, while the automobile of the other defendants, with lights plainly visible, was approaching at an equally rapid speed, amounted to gross negligence, and whether the alleged joint acts of all the defendants caused the injury, and, if not, whose if any such act was the proximate cause, are matters which are not so plain and palpable as properly to be resolved as a matter of law on demurrer, but are questions of fact for determination by a jury. TJnder the above decision, the difference in [559] the degrees of care owed by the different defendants to the plaintiff as the guest of one defendant, and the charge that the negligence of the host was gross while that of the other defendants was ordinary negligence, would not show a misjoinder of parties defendant or of causes of action, where it was alleged that the injury was produced by all of the concurrent acts. Gooch v. Georgia, Marble Co., 151 Ga. 462 (107 S. E. 47). Judgment affirmed. Stephens and Sutton, JJ., concur.