Eberhart v. Seaboard Air-Line Railway Co.

Luke, J.

(After stating the foregoing facts.) The controlling issue in this case is: What was the proximate cause of the alleged injury as shown by the amended petition? After a careful study of the record and of numerous decisions, we are convinced that the real, direct, proximate cause of the alleged injury was the operation of the automobile by Dr. Proctor, and that the court properly sustained the general demurrer to the petition. Assuming the allegations of the petition to be true, for the purpose of testing it as against a general demurrer, these alleged negligent acts of the defendant company were not the proximate cause of the alleged injury. While the mission upon which he was going may have, from a moral standpoint, justified Dr. Proctor in traveling at the rate of 20 to 25 miles an hour on a bridge, on a dark and rainy night, and the darkness and the rain may have caused him to misjudge the roadway, still these are circumstances over which the defendant company had no control, and the fact remains that if Dr. Proctor had driven at a proper rate of speed and properly steered the automobile in approaching and driving upon the bridge, he would have gone across in safety, regardless of the alleged defective guard-rails or the advertising signs, and the accident would have been avoided; and his failure to do so was the real, direct, and proximate cause of plaintiff’s injury. “The proximate cause of an- injury is that cause which immediately precedes and directly produces the injury, without which the injury would not have happened. . . So long and so far as an ultimate result can be traced to a first cause, though through successive stages, the responsibility rests with the one who put in operation the chain of events which caused the wrong or injur}'. . . The proximate cause is the dominant cause, not the one which is incidental- to that cause, its mere instrument, though the latter may be nearest in place and time to the loss. . . The proximate cause of an accident'is a cause without which the accident would not have occurred. . . The proximate cause is the efficient cause, the one that necessarily sets the other causes in operation.” Words & Phrases, vol. 6, p. 5762. Questions of diligence and negligence being peculiarly for the jury, the court will decline to solve them on demurrer, “except in plain and indisputable cases;” but “where it clearly appears from the petition that the negligence charged against the defendant .was not the proximate and-effective cause of the injury, . . the court may upon general demurrer, as a matter of law, so determine.” Martin v. McAfee, 31 Ga. App. 695 (122 S. E. 72). “To entitle a party to recover damages of a railroad company on account of the negligence of its agents, it should appear that the negligence was the natural and proximate cause of the injury; for should it appear that the negligence of the railroad company would not have damaged the party complaining but for the interposition of a separate independent agency, over which the railroad company neither had or exercised control, then the party complaining can not recover.” Perry v. Central Railroad, 66 Ga. 746 (5). While the plaintiff, in the enumeration of the alleged negligent acts of the defendant company, made reference to “such a rate of speed as should have been anticipated by the defendant company,” yet the petition shows that “said car was traveling between 20 and 25 miles an hour” at the time of the impact. See Park’s Code Supp. (1922), .vol. 8, 828(dd); Ga. L. 1921, sec. 2, p. 256. There was no legal duty on the defendant company to construct the guard-rails of the bridge sufficiently strong to withstand the impact of an automobile going at the rate of twenty to twenty-five miles per hour. Corley v. Cobb County, 21 Ga. App. 219 (93 S. E. 1015).

. When the amended petition as a whole is construed most strongly against the plaintiff, it fails to show either that the alleged negligence of the defendant was the direct or proximate cause of the injuries sued for, or that it was a contributing factor thereto. On the contrary, the petition, properly construed, clearly shows (despite its allegations of the defendant’s contributory negligence) that the gross and criminal negligence of the driver of the automobile (in which the plaintiff was riding as a passenger and employee of the driver when she was injured) was the direct, proximate, and sole cause of the plaintiff’s injuries. The court, therefore, properly dismissed the petition on demurrer.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.