50 Ga. App. 531 | Ga. Ct. App. | 1935
This is a suit against the Anchor Duck Mills, a corporation, and also its assistant superintendent, Hart, for damages from alleged severe leg and body injuries on account of being knocked down by Hart’s automobile. The petition alleged that Hart drove his car against the plaintiff not only negligently, but also deliberately, wilfully, maliciously, and intentionally, while the plaintiff was standing on the city sidewalk in front of the entrance gate to the mill property. There was no demurrer to the petition. The answers of the defendants denied liability, and set up that, if the plaintiff was injured, it was the result of Ms own recklessness and failure to exercise ordinary care. A nonsuit was granted as to both defendants, after the completion of the testimony of the plaintiff, the only witness. The essential parts of his testimony are as follows: that a strike was in progress at the time of the alleged injury; that he was standing with a number of other persons on the city sidewalk, his own position being “about middle-ways the driveway” and Jthree feet” out from “the center of the gate” entering the mill premises; that Hart, the assistant superintendent of the corporation, drove up in the road “about 12 feet from the sidewalk and blowed his horn, and stopped just long enough for Mr. Cliff Spence to get in his car, and his brother was in the car, and when Mr. Spence got in the car, he put his car in second, I heard him change the gear to second speed, and I tried to get out of the way, . . and it knocked my feet out from un
2. “Upon approaching or passing any person . . travel-' ing any public street or highway . . the operator of a motor-vehicle . . shall at all times have the same under immediate control.” Ga. Laws, 1921, pp. 255, 256; Michie’s Code, § 1770 (51). One operating an automobile has the right to assume and act upon the assumption, in the absence of anything which reasonably should give him notice to the contrary, that a pedestrian will exercise ordinary care for his own safety, and will not intentionally or negligently expose himself to danger. This duty of the pedestrian and right of reliance thereon by the driver will not relieve the driver of his correlative duty, under the statute and general rules of law, to give proper warning of his approach and to keep his car under immediate control while approaching the pedestrian, in exercising the care which every prudent person would do under the same or similar circumstances. The pedestrian likewise has the right to assume that the driver will exercise ordinary care in the operation of the car and in not striking him; but this does not relieve the pedestrian of his own duty to exercise ordinary care after his danger has become apparent or by ordinary diligence should have become apparent, and not to expose himself to the danger purposely, recklessly, or without ordinary care. If he does so, and such action or omission on his own part proximately contributes to his injury, he can not recover for any mere negligence of the driver, but may still recover where the acts of the driver are malicious, wilful, or intentional. See 1 Blashfield’s Automobile Law, 367, 368, 370, 588-590, 1010, 1013, 1016; 2 Id. 1838, 1841, 1879; 42 C. J. 920, 1031, 1035, 1036, and cit.
3. Questions of negligence, including contributory negligence, are generally questions for the jury, and can not be resolved by the
4. A special demurrer is the remedy for want of certainty and definiteness in a petition. In the absence of a special demurrer on the ground of duplicity, that question is not before this court. Citizens &c. Bank v. Union Warehouse Co., 157 Ga. 434, 456 (122 S. E. 327); Young Co. v. Minchew, 42 Ga. App. 228, 232 (155 S. E. 356). Although the instant petition charged in one count that the acts of the defendant driver of the automobile were not only negligent but were also intentional and wilful, the plaintiff would not be precluded by any duplicity in his pleading from recovering upon either theory or cause of action which he might sustain by evidence, in the absence of a sjiecial demurrer raising such question of duplicity. Central of Ga. Ry. Co. v. Banks, 128 Ga. 785 (58 S. E. 352).
5. In the instant case, under the foregoing rules, it was a question for the jury to determine from the evidence submitted, including all the surrounding facts and circumstances, whether or not the individual defendant was guilty of a lack of ordinary care which proximately contributed to the alleged injury, in failing to give proper warning to the plaintiff, who with others was standing on the sidewalk, as the defendant approached in his car from the street to cross the sidewalk and enter the mill premises where he was employed as assistant superintendent, or whether in thus driving into the premises he failed to exercise ordinary care proximately contributing to the alleged injury in failing to keep his machine under immediate control. In the event the jury had found that the defendant was guilty of such negligence, it was also for them to determine whether the plaintiff, by the exercise of ordinary care on his own part, could have avoided the consequences of the defendant’s negligence after it had or in the exercise of ordinary diligence should have become known. If the jury had determined the last-mentioned issue as to the plaintiff’s own negligence in favor of the defendant, or had determined that the defendant was not guilty of negligence in failing to give proper warning of his approach or in not having the ear under immediate control at the time he entered upon the sidewalk, it would have been their duty, in either event, to find in favor of the defendant, unless the jury had found from the evidence that it was true, as charged in the
Judgment affirmed in pari and reversed in part.