54 Ga. App. 687 | Ga. Ct. App. | 1935
John E. Smith brought suit against Hudgins Contracting Company for damages to an automobile, and obtained verdict and judgment. The bill of exceptions assigns error on the overruling of general and special grounds of demurrer to the original petition, on the overruling of the demurrer to the petition as amended, and on the overruling of the motion for'new trial. The plaintiff in error insists that the petition failed to set out a cause of action, and therefore was not amendable. The petition
The law is liberal with reference to the allowance of amendments. Necessary allegations, clothed in the most apt and expressive language, are often termed “conclusions of the pleader,” when they are not such conclusions in legal contemplation. But even so, such conclusions may be substantiated by allegations of fact. It is not necessary for a plaintiff to plead his evidence; and “except in cases of railroad employees injured by the negligence of fellow servants and suing under our statutes governing that subject, contributory negligence is an affirmative defense, and it is generally not necessary for the plaintiff to negative its existence in his petition.” Great Cosmopolitan Shows v. Petty, 7 Ga. App. 236 (66 S. E. 624). The facts alleged in the instant case are similar in principle to those in Gay v. Smith, 51 Ga. App. 615 (181 S. E. 129), where it was held: “A petition alleging that the plaintiff’s son was in an automobile being driven by another, . . on . . a dark and foggy morning, . . over a public highway, that it ran into a gondola ear which formed a part of a freight-train standing across and blocking the highway, . . that the fog was dense and heavy at this point, which prevented the driver of the automobile from seeing the railroad-car across the highway, that neither the driver nor other occupants of the automobile knew of the railroad crossing at this point, that there was no light, no flagman waving a lantern, or other signal or warning to people traveling the highway, of the presence of the train across the highway, that the gondola car and the pavement of the highway were of a similar color and damp with the mist, and this, with the foggy and dense atmosphere and the darkness, rendered the train car very much the same color of the pavement on the highway and very difficult to see, and that as a result thereof the driver of the automobile using due care and caution in the premises and proceeding at an orderly rate of speed, about 30 miles an hour, plaintiff’s son was instantly killed when the automobile collided with the standing freight-car, set up a cause of action, and the judge did not err in overruling the general demurrer. [Citing authorities.] ‘Every case of this sort must, in
In order to meet the special demurrers to the petition, which were sustained, the plaintiff set out certain city ordinances relative to vehicles being operated “in disregard of the rights or safety of others,” “slowly moving or heavily-laden vehicles” blocking “the normal and reasonable movement of .traffic,” requiring “two lights facing front and a light showing red in the rear,” parking vehicles on the street at night without a light, interfering with or interrupting “the passage of other veheles;” and the State law requiring vehicles using the highways at night to be equipped with “lamps clearly visible for a distance of not less than 100 feet from the front and rear,” and requiring tractors and trailers to “have on the rear thereof one lamp capable of displaying a red light visible for a distance of at least 100 feet behind such vehicle.” The plaintiff alleged that the defendant was violating said laws
The evidence as to the extent of damage to the ear was conflicting, as was the evidence as to negligence of the plaintiff and the defendant. The plaintiff testified that the defendant’s trailer with steam shovel thereon was bigger than a street-car; that it was painted yellow and could not be seen on the dark rainy night; that “there wasn’t any one behind it with any lights, and there were not any lights on it;” that it was “in the middle of the street;” that it was dark, rainy, and foggy, and “for that reason I was not going fast;” that he “was going between 20 and 25 miles an hour;” and that his car was properly equipped with two windshield wipers in operation, with lights which were burning, and with hydraulic 'brakes. The operator of the defendant company testified that he was standing about 40 feet behind the trailer, with a red lantern which was lighted and which he waved, and that there was also a lantern near the top of the cab; that the plaintiff was “possibly running 30 to 35 miles per hour when he passed me;” and that the trailer was parked on the right-hand side of the street. A radio policeman testified that he received a call to go to the scene of the collision; that he did not “see any lights on the rear of the steam shovel at all. I looked for a light; that was one of the first things we looked for, and I didn’t see any light, and about that time some one came up the street with a lantern and hung it on the steam shovel.” The ordinances relative to reckless driving, slow moving, and heavily-laden vehicles, and those in reference to lights being required in front and rear of vehicles, were introduced. Under the conflicting evidence, the questions of the defendant’s negligence, the plaintiff’s negligence,
The only special ground of the motion for new trial is as follows: The plaintiff was being questioned by his attorney concerning the length of time his damaged ear had remained in the 'garage after the wreck, and why it had not been repaired; and counsel asked: “Why wasn’t anything done about it? A. I was trying to get a settlement out of him or the insurance company. I wanted them to see what bad shape it was in, before they did anything about it. . . Counsel for the defendant moved for a mistrial upon the ground that statement made by the plaintiff was prejudicial to the defendant, and that no insurance company was defending the case. The court stated to the jury that he would not feel justified in granting a mistrial, but did instruct the jury to disregard the statement with reference to insurance or to the insurance company, and directed the jury to remove that from their minds. . . At no time and in no other way, during the progress of the trial, was the matter of insurance brought to the attention of the court or the jury.” Counsel for the defendant in his brief says: “It seems that counsel for plaintiff was expecting the witness to answer as he did answer, and purposely put the question for the very purpose of injecting that fact into the case.” Counsel for the plaintiff insists that he had no such idea, and that such inference was not justified, “as counsel for the defendant in
Affirmed.