41 S.E.2d 661 | Ga. Ct. App. | 1947
The court did not err in overruling the oral motion to dismiss the petition, on the ground that it failed to set out a cause of action against the defendants de Golian and Kidd because its allegations showed that the plaintiff failed to exercise ordinary care for her own protection.
The petition also alleged that the defendant Suburban Coach *868 Company Inc., through its agent and servant, was negligent in the following respects: (a) In stopping its bus upon said highway within less than eight feet from the center line of the highway; (b) in stopping the bus at a place other than a regularly designated bus stop established by said defendant and known to be a bus stop by passing motorists; (c) in instructing the plaintiff to pass in front of his bus, when in the exercise of ordinary care he knew or should have known that her presence would be obscured by the bus; (d) in instructing the plaintiff to pass in front of the bus at a time when he could see in the rear view mirror the presence of the defendant Kidd's automobile approaching from the rear of the bus, and knew that it would likely strike the plaintiff; (e) in failing to provide the plaintiff a safe place to alight by obstructing her view of the defendant Kidd and Kidd's view of the plaintiff; (f) in failing to look out for and give warning of the motorists approaching from the rear.
The petition alleged further that at said time and place the plaintiff was in the exercise of ordinary care and could not avoid the consequence of the defendants' negligence, and that the negligence of the defendants concurred in causing the injuries to the plaintiff; "each of the defendants, therefore, by their joint negligence above set forth being joint tort-feasors contributing to and producing the injuries herein complained of."
The petition set forth in detail the alleged injuries of the plaintiff.
The defendants de Golian and Kidd demurred generally and specially to the petition and also made an oral motion to dismiss the petition, upon the ground that it failed to state a cause of action against said defendants because its allegations showed that the plaintiff failed to exercise ordinary care for her own protection. The court overruled the motion, and that judgment is assigned as error in the bill of exceptions. The only assignment of error argued or insisted upon in the brief of counsel for the plaintiff in error is the one excepting to the overruling of the oral motion, in the nature of a general demurrer, to dismiss the *869 petition; and that motion was based solely upon the ground that the petition did not state a cause of action against the defendants de Golian and Kidd because its allegations showed that the plaintiff failed to exercise ordinary care for her own protection.
It is well-settled law that questions of negligence, diligence, contributory negligence, proximate cause, and the exercise of ordinary care for one's protection, ordinarily are to be decided by a jury, and a court should not decide them on demurrer, except in plain and indisputable cases. SouthernCotton Oil Co. v. Gladman,
In our opinion, the facts alleged in the petition set forth a cause of action against the defendants de Golian and Kidd; and the overruling of the oral motion to dismiss the petition, on the ground that the allegations showed that the plaintiff had failed to exercise ordinary care for her own protection, was not error.
Judgment affirmed. MacIntyre and Gardner, JJ., concur. *870