5 Ga. App. 664 | Ga. Ct. App. | 1909
The court below dismissed the plaintiff’s petition, and also sustained certain special demurrers thereto, in a single order. We do not know from the record whether the plaintiff offered to amend in response to the special demurrers or not, before the judgment sustaining the general demurrer was entered, but
We think that the general demurrer should have been overruled. According to the plaintiff’s petition, he was driving a wagon on a public street and was approaching a public crossing. The defendant’s car, which had been running very rapidly, slowed up and the motorman signalled him as if the car were going to stop. The plaintiff accordingly started to go across the street-car track, whereupon the motorman carelessly dropped his controller and the car suddenly bounded forward, overtook him before he had crossed, and injured him. It is possible that some of the allegations are subject to special demurrer; and as to some of the special demurrers it is also true that they themselves are demurrable. But while the court could rightly direct the plaintiff to amend in response to the special demurrers which he might sustain, or, upon failure to amend, strike the defective allegations, where the defect is specifically pointed out by the demurrer, still, should those paragraphs which are specially demurrable be stricken, enough would still remain to enable the petition to withstand the general demurrer. It may be that the paragraph alleging that the motorman signalled the plaintiff that it was his purpose to stop the car and permit him to cross is subject to special demurrer, but it is not subject to the special demurrer filed, to wit, that “the petition is defective in that it does not state or describe the directions given by the motorman to the plaintiff to cross the track, and because the acts which the petitioner claims gave him permission to cross the track could not bear that construction by a man in the exercise of ordinary care.” In our opinion the acts of the motorman as described might have led the plaintiff to believe that the car was going to stop; and certainly whether the conduct of the motorman and the surrounding circumstances would be construed by a man of ordinary care as notice for him to cross is a question for the jury. As to whether the motorman should have rung a bell or sounded a gong as he approached the crossing in question, under the circumstances detailed by the plaintiff, is, for the reasons stated in Cordray v. Sa
Taking the petition with all of the special demurrers sustained, except the last portion of the fifth demurrer, it showed that “while-driving westward on the north side of Barnard street, and approaching the intersection of Jones street and .Barnard street, [the petitioner] discovered that a car of said defendant company was. coming- from the south and proceeding northward on the east track of Barnard street at a rapid rate of speed.. Petitioner immediately reined in his horse, for the purpose of permitting the said, street-car to pass on its northward journey before petitioner’s horse reached the track;' but after petitioner had reined in his. horse and was in a position to have stopped his horse before the same' would have stepped on the east track of Barnard street, the motorman in charge of the street-car checked the speed of his- car-