38 S.E.2d 55 | Ga. Ct. App. | 1946
The court erred in sustaining the general demurrer to the petition, for the reasons given in the opinion.
"3. That, at about the hour of 8:30 in the evening on said date, the plaintiff, with her parents. Mr. and Mrs. B. S. Lanier, and her sister. Mrs. Leham Stubbs, was proceeding along route 25, from Millen, Georgia, towards Statesboro, Georgia, in plaintiff's automobile, to wit, a 1937 model Plymouth, when at a point along said highway near the ginnery of Mrs. Kate Newton, in said county, she ran upon, into and against the said automobile truck, driven by the said Nip Turner, as aforesaid; and which said truck was at the time parked on the right-hand side of said highway, on the pavement, in the direct line of traffic going toward Statesboro, in darkness, without lights, or warnings, or flares, or anything to put approaching traffic on notice that said truck was so parked and thereby obstructing the said highway; and that there was no effort made nor nothing done by the said driver, nor any one else, to warn nor give notice to the plaintiff, as she approached said parked truck, of its presence on said highway.
"4. That said truck was then loaded with a two-horse wagon, with tongue attached and which said tongue extended out beyond the body of said truck, backward over said highway toward Millen and in the direction of approach of plaintiff; and it was then and there without light, signal, flare, or anything to give warning of its protruding presence, and which said tongue, together with the truck in which it was being hauled, was run into and against by plaintiff and her said automobile; and that plaintiff was so near to said truck and to the end of said wagon tongue before she discovered their presence, although she was then exercising every precaution to insure safe driving, that she could not stop her car before hitting said tongue and truck; and plaintiff could not at the time safely undertake to go around said parked truck to the left, because of the approach and passing of an automobile going toward Millen; and that said wagon tongue crashed into her car, and which, together with the impact with said truck did cause the personal injuries and property damage hereinafter alleged.
"5. That plaintiff was injured, and suffered the consequences thereof, as a result of said collision as follows: a severe cut on forehead, beginning over the middle of the right eyelid and extending over nose, about two inches, in a curve upward over left eye, five or six lacerations of the right hand and arm, lacerations *751 on lower part of chin; right shoulder broken in joint, or approximately therein; and which said injuries are permanent, and from which plaintiff suffered severe shock and physical pain; and from which plaintiff still suffers severe pains and physical discomforts; and mental anguish because of the unsightly scars on plaintiff's face, resulting from said injuries, and which mar her physical appearance and which will permanently disfigure plaintiff in her physical appearance; and which will continue to cause her mental discomfort and unrest throughout her life, she being now a young woman with prospects of long life.
"7. That at the time of the collision of the plaintiff's car with defendant's truck, the plaintiff was exercising all caution for her own safety, and that of those riding with her by driving to the right of the center of said highway, at a reasonable speed, consistent with the safety of human life and property, with her automobile properly lighted both on the front and rear; and the plaintiff could not have avoided the collision, injury, and damage to her and her car by the exercise of ordinary care and caution; and the plaintiff affirmatively alleges that she was at the time of said wreck exercising all proper and necessary caution in proceeding along said highway at the time said injuries occurred."
Paragraph 6 of the petition alleged certain injuries which the plaintiff received by the alleged negligence of the defendants. Paragraphs 8 and 9 alleged specific damage to the plaintiff's automobile, and physical injuries to her, and certain expenses incidental thereto. Paragraph 10 alleged that the injuries and damages were the direct and approximate result of the negligence of the defendants and were specifically as follows: "(1) By parking said truck on the highway, in the night time, without lights, flares, or other sufficient signals to put approaching traffic on notice of its presence on said highway.
"(2) By parking said truck on said highway in violation of the laws of the State of Georgia, governing and controlling the parking of motor vehicles on highways and which forbid such parking of said vehicles.
"(3) By failing to give any signal, or warning of the presence on said highway of said truck, by the blowing of horns or sounding of gongs.
"(4) By so operating said truck as to show an utter disregard for the safety of person and property. *752
"(5) By failing to remove from said wagon the tongue so that the same would not extend out and beyond the body of said truck and over the highway, backward in the direction of approaching traffic from the rear; and by failing to attach to the end of said wagon tongue a light or other signal sufficient to warn approaching traffic of its presence on said highways."
The defendants demurred generally and specially, to the effect, (1) that the petition set forth no cause of action, and (2) that the damage to the plaintiff's automobile was not specifically stated. In response to the special demurrer, the plaintiff set forth a bill of particulars relative to the damage to her car. The trial judge allowed this amendment. He then passed an order sustaining the general demurrer and dismissed the petition. The plaintiff excepted to this judgment and brings the case here for review. The only question before us is, whether or not the petition as amended set forth a cause of action. The petition in effect alleged that the defendants, at night, parked a truck without lights on the highway. Also, that there were no flares or warnings of any kind to put users of the highway on notice as to the parked truck which had on it a two-horse wagon with tongue attached thereto and protruding beyond the length of the truck. The petition further alleged that, while the plaintiff was exercising all due diligence in the operation of her car, she ran into the protruding wagon tongue and truck, practically demolishing her car and inflicting upon her extensive bodily injuries. It was further alleged that, as she approached the truck and discovered its presence, she could not safely undertake to turn to the left and avoid it because of another automobile, which was at the time approaching from the opposite direction toward the truck.
It is the established law of our State that questions of diligence and negligence, involving comparative negligence and what negligence constitutes the proximate cause of an alleged injury, are peculiarly for the determination of the jury, and this court will not solve such questions on demurrer except in palpably clear, plain, and undisputable cases. Southern Ry. Co.
v. Slaton,
The defendants, in addition to the Sumner case, rely for an affirmance of the judgment on the following cases: Love v.Payne,
We think that the court erred in sustaining the general demurrer.
Judgment reversed. Broyles, C. J., and MacIntyre, J.,concur.