92 Ga. App. 689 | Ga. Ct. App. | 1955
“It is an elementary rule of construction, as applied to a pleading, that it is to be construed most strongly against the pleader; and that if an inference unfavorable to the right of a party claiming a right under such a pleading may be fairly drawn from the facts stated therein, such inference on demurrer, will prevail in determining the rights of the parties. Krueger v. McDougald, 148 Ga. 429 (1) (96 S. E. 867).” Moore v. Seaboard Air-Line Ry. Co., 30 Ga. App. 466 (118 S. E. 471). It is the defendant’s contention that, under an application of the foregoing rule -oí construction, it appears from the petition and
Such a line of reasoning, we think, is faulty. It is nowhere alleged in what position the plaintiff was standing or sitting at the time of the explosion, and had the defendant wished this information, he should have asked for it by special demurrer. Filling a gas tank on a motor boat with gasoline is not ordinarily a dangerous operation, and while overflowing the tank may be dangerous, there is nothing in the petition from which the inference may be drawn that the plaintiff had any reason to anticipate that the tank would be overflowed so that the gasoline would come into contact with the hot exhaust pipe. Indeed, he had every right to anticipate the contrary. While the nature of the plaintiff’s injuries, or the fact that he was injured at all, necessarily indicates that he was within the ambit of the explosion, it does not follow that his injuries indicate that he was in the boat or even so near the boat as to observe the filling operation
The cases upon which the defendant relies are not in point, as in each of those cases it appears that the acts which caused the plaintiff's injuries were affirmative acts on the .part of the plaintiff himself.
The trial court did not err in overruling the general demurrer to the petition.
Headnote 2 requires no elaboration.
Judgment affirmed.