30 S.E.2d 429 | Ga. Ct. App. | 1944
1. The court did not err in overruling the general demurrer to the petition.
2. (a) The plaintiff is not entitled to recover in any case where by the exercise of ordinary care he can avoid the consequences of another's negligence.
(b) Under the rule of comparative negligence and apportionment of damages the plaintiff may recover, even though he contributed in some way to the injury sustained, provided his negligence is less than that of the defendant, and he could not, by the exercise of ordinary care, have avoided the negligence of the defendant. In such a case the damages will be apportioned.
(c) The question of whose negligence and what negligence is the proximate cause of the injury, and the degree of negligence as between the parties, is generally a jury question, under the whole evidence, to be determined by the jury under proper instructions from the court.
(d) Where a petition alleges negligence of the defendant as the proximate cause of the injury, the petition need not negative contributory negligence on the part of the plaintiff.
(e) Even though inference of contributory negligence on the part of the plaintiff may be drawn from the allegations of the petition, the petition will not be dismissed on demurrer unless in construing the petition *170 most strongly against the plaintiff it appears that the plaintiff, by the exercise of ordinary care, could have avoided the consequences of the defendant's negligence.
(f) The courts should decline to decide questions of negligence on demurrer except in plain and indisputable cases.
The defendant demurred generally, "because said petition fails to set out any cause of action," and, "because said petition shows on its face that the plaintiff acting by and through its servant or agent was negligent, and that the plaintiff's negligence was the proximate cause of his injury and damages." The court, in overruling the demurrer, stated: "Upon consideration of defendant's general demurrer to plaintiff's petition . . it is ordered that said demurrer be, and the same is hereby overruled, on authority of Minnick v. Jackson,
2. The Code, § 105-603, provides: "If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover. In other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained." See to the same effect, Sims v. Martin,
Judgment affirmed. Broyles, C. J., and MacIntyre, J., concur.