42 S.E.2d 244 | Ga. Ct. App. | 1947
The amended petition set out a cause of action; and its dismissal on general demurrer was error.
The defendant demurred generally and specially to the petition, and the court sustained the general demurrer on the ground that the allegations of the petition failed to show that the defendant had actual knowledge of the defective and dangerous condition of the gas furnace. However, the court allowed the plaintiff 15 days within which to amend her petition, and that if she failed to do so the petition "will stand dismissed." Within the time allowed, the plaintiff amended her petition by adding to paragraph 7 thereof the following words: "Defendant had actual knowledge of the defective condition of said furnace and its controls." The amendment was allowed and filed, subject to demurrer.
The defendant renewed its demurrers, both general and special to the amended petition, and the court, without passing on the special demurrers, sustained the general demurrer and dismissed the petition; and that judgment is assigned as error.
It is well settled that questions of diligence and negligence are ordinarily questions peculiarly within the province of the jury to determine. Meriwether County v. Gilbert,
The other cases cited by the defendant are distinguished by their particular facts from this case.
In our opinion, the petition as amended, though possibly subject to special demurrer, set out a cause of action, and its dismissal on general demurrer was error.
Judgment reversed. MacIntyre and Gardner, JJ., concur.