14648 | Ga. Ct. App. | Feb 23, 1924
1. Since tlie averments contained in a petition must, for tlie purpose of determining a demurrer, be taken as true, except where an allegation sets forth a physical impossibility or a statement which is inherently incredible, and since, except in plain and indisputable cases, it is for the jury to say whether an allegation is or is not inherently incredible, this court is unable to say, as. a matter of law, that the plaintiff must have been aware of the approach of the street-car until just prior to the time when he was struck, as alleged in the petition; and since questions as to diligence and negligence, including contributory negligence, and what constitutes the proximate cause of the injury complained of, are questions peculiarly for the jury, such as this court will decline to solve on demurrer except where such questions appear palpably clear, the court did not err in refusing to strike the plaintiff’s petition on-general demurrer. Howard v. Savannah Electric Co., 140 Ga. 482 (a, b), 486 (79 S.E. 112" date_filed="1913-08-13" court="Ga." case_name="Howard v. Savannah Electric Co.">79 S. E. 112); Columbus R. Co. v. Berry, 142 Ga. 670, 673 (83 S.E. 509" date_filed="1914-11-13" court="Ga." case_name="Columbus Railroad v. Berry">83 S. E. 509); Larkin v. Andrews, 27 Ga. App. 685 (109 S.E. 518" date_filed="1921-11-18" court="Ga. Ct. App." case_name="Larkin v. Andrews">109 S. E. 518); Columbus R. Co. v. Moore, 29 Ga. App. 79 (113 S.E. 820" date_filed="1922-09-23" court="Ga. Ct. App." case_name="Columbus Railroad v. Moore">113 S. E. 820); Rome Ry. & Lt. Co. v. King, 30 Ga. App. 231 (2) (117 S.E. 464" date_filed="1923-04-18" court="Ga. Ct. App." case_name="Rome Railway & Light Co. v. King">117 S. E. 464).
2. Such of the grounds of special demurrer as were meritorious were cured by the paragraphs added to the petition by amendment.
Judgment affirmed.