102 Ga. App. 172 | Ga. Ct. App. | 1960
The court did not err in overruling the general demurrer to the petition in case No. 38357. The court erred in sustaining the general demurrer to the petition in case No. 38297. The petitions in the two cases are substantially the same. The first question to be decided is the meaning of the petitions. They allege in substance that Mose Gordon Collins was riding his bicycle as aforesaid in a southeasterly direction on his right side of the road at approximately the center thereof. In our view, this is an ambiguous allegation and means either that Collins was riding approximately in the middle of his right-hand side of the road or approximately in the middle of the road as a whole. Construing the petition most strongly against the pleader, the latter construction must be adopted. The fact that the plaintiffs in these petitions do not specify as an item of negligence the fact that the truck was driven on the wrong side of the road lends support, if any is needed, to the construction that we have placed on the petitions. The next question which arises is whether the minor was barred by his own negligence in the circumstances. The burden
In case No. 38297 the trial judge sustained two special demurrers to allegations of the petition. The petition alleged: “That the defendant, Ellis DeWitt Alewine, did not sound the horn of the truck which he was driving and which belonged to the defendant, The Loef Company, and gave no warning of his approach or any signal as to the danger which might confront Mose Gordon Collins.” The Ga. L. 1953, Nov. Sess., pp. 556, 612 (Code Ann. § 68-1716) provides in part as follows: “The driver of a motor vehicle shall when reasonably necessary to insure safe operation give audible warning with his horn but shall not otherwise use such horn when upon a highway.” Ga. L. 1953, Nov. Sess., pp. 556, 593 (Code Ann. § 68-1658) provides in part as follows: “Notwithstanding the foregoing provisions of sections 68-1653 through 68-1660 every driver of a vehicle shall exercise due care to avoid colliding with any pedestrain upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway.” Under the foregoing statutes we think the petition in case No. 38297 presented a jury question as to whether in the exercise of ordinary care under the circumstances the driver of the truck should have sounded his horn as a warning to the minor child, as it cannot be said as a matter of law, in our opinion, that the driver of the truck owed no such duty. The court erred in sustaining the special demurrers to this paragraph of the petition.
Paragraph 13(a) of the petition in case No. 38297, which was attacked by special demurrer, alleged: “The said Ellis DeWitt Alewine was negligent in driving said 1957 Dodge truck at a speed greater than 15 miles per hour in a school area in the City of Athens, Georgia, where a great number of children walk to and from school, also in not sounding his horn and warning Mose Gordon Collins, a child, of his approach.” The court
The court did not err in overruling the general demurrer to the petition in case No. 38357. The court erred in sustaining the general and special demurrers to the petition in case No. 38297.
Judgment in case No. 38357 affirmed.