27 Ga. App. 699 | Ga. Ct. App. | 1921
1. The petition is not defective for the reason assigned, that it fails to show that the alleged negligent act of the defendants’ servant was done within the scope of his duties and employment. Not only would it seem that this necessary element of liability is shown by reasonable inference from the allegations made, but it is expressly alleged.
2. Whether the defendants’ alleged act of negligence was the proximate cause of the injury, as claimed by the plaintiff, or whether the injury ivas caused by the negligence of the plaintiff in failing to observe and avoid contact with the alleged obstruction, was properly left for determination by the jury.
3. The grounds of special demurrer are without merit.
(a) The petition alleges that the plaintiff, at the time of his alleged injury, was driving his car along a public highway. A traveler, in the absence of notice to the contrary, has a right to use it and to assume that it is reasonably safe and free from obstructions. Nothing shown in the petition could indicate that the plaintiff was' a trespasser, on account of the county authorities’ having closed the highway pending the making of repairs thereon for it by the defendant. On the contrary, the petition shows that “there ivas no other barrier or obstruction of any kind or character, or anything else, to indicate that said public road was closed, or to call attention to the fact that said wire was so suspended.”
(b) The nature and character of the alleged obstruction, as consisting of a “ small cable wire,” which the petition alleged the defendants had stretched across the highway, is sufficiently described. Especially is this true since more detailed information as to its character would lie more particularly within the knowledge of the defendants, who it is alleged had strung it.
4. The court did not err in overruling the demurrer to the petition as amended. Judgment affirmed.