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Action for damages. Fulton Civil Court. Before Judge Camp.
FELTON, Chief Judge.
1. The petition stated a cause of action, therefore it was not error to overrule the motion to dismiss.
2. There being some evidence to support the judgment, the court did not abuse its discretion in overruling the motion for new trial.
68-1637 (2) (driving a vehicle to the left side of the center of a roadway when approaching within 100 feet of an intersection); violation of Code Ann. 68-1640 (failure to drive a vehicle as nearly as practical entirely within a single lane); failure to exercise ordinary care in the operation of a vehicle by driving it on a public street, at night, with a moving projection on the left side of the roadway, occupying more than one-half of the main-traveled portion of the roadway. Defendant Hopkins filed an answer alleging that the plaintiff's damages were due to her own negligence or that of her husband, which exceeded any negligence of the defendant. By amendment the answer alleged that the defendant was authorized on January 29, 1959, to move the house and was at all times operating within the law and in conformity with all applicable State laws, regulations and city ordinances. A copy of the authorization from the Truck Weighing & Permit Division of the State Highway Department of Georgia for the transporting of the house was attached as an exhibit to the answer. At the beginning of the trial defendant Hopkins moved to dismiss the petition, which motion was overruled by the court without hearing argument thereon. The case was tried before the judge without the intervention of a jury, and a judgment of $800 was rendered in favor of the plaintiff against the defendants. Defendant Hopkins filed a motion for a new trial on the usual three general grounds, which motion the court overruled. Defendant Hopkins excepts to the judgments of the court in overruling the motion to dismiss and the motion for new trial.
1. A motion to strike, or to dismiss, is, in effect, a general demurrer and is therefore subject to the rule that it is ineffectual unless the pleading against which it is directed as a whole is fatally defective. Venable v. Gresham, 105 Ga. App. 720, 721 (125 SE2d 507) and citations. The petition alleged that the plaintiff was driving within her own lane at a reasonable rate of speed; that the collision occurred late at night and that the portion of the house which protruded into the plaintiff's lane was unlighted; and that the defendants' alleged acts of negligence were the sole and proximate cause of the collision. These allegations set out a cause of action sufficient to withstand a general demurrer, hence the court did not err in overruling the motion to dismiss.
2. In passing upon the general grounds of a motion for new trial, this court will not disturb the trial court's refusal to grant a new trial if there is any evidence to support the judgment. City of McRae v. Folsom, 191 Ga. 272, 276 (11 SE2d 900); Madison v. Montgomery, 206 Ga. 199 (2) (56 SE2d 292); see also annotations under Code 70-202, catchword "Judge." The plaintiff testified that preceding the collision she saw a large, dark, unlighted shape which she could not identify and that she immediately stopped her automobile, whereupon she was struck by what she later learned was the house. The plaintiff's husband testified that he was a passenger in the plaintiff's automobile at the time of the collision; that he could not drive, had never driven and did not have a license to drive an automobile; that although the street was lighted he did not see the house; that there were no lights on the house or warnings given him by the driver of the truck or by any other means. Defendant Hopkins testified that he owned the truck; that he had hired the men who were operating it for him; that the house covered more than one-half of the roadway; that he was moving about five miles per hour; that the house had lights across the top and on the back; that a lead car was furnished to give warning to approaching vehicles; that lights were being flashed as the plaintiff approached. An occupant of the truck testified that his job was to give warning to approaching vehicles; that he was flashing a red flash light in front of the truck; that there were lights on the truck and on the house. An occupant of the lead car testified that he was also waving a warning light and that there were lights on the house when he last saw it. All three of the latter witnesses testified that they identified the plaintiff's husband as the driver of the plaintiff's automobile. The conflicts in the evidence were questions for the trior of fact and not one of law for this court. "As the case was submitted to the judge for determination of all issues without a jury, wherever it is necessary to consider any conflict in the evidence in the record, that view of it must be taken which is most favorable to the prevailing parties." City of McRae v. Folsum, 191 Ga. 272, 276, supra. The general grounds were therefore without merit and the motion was properly overruled.
The court did not err in its judgments overruling the motion to dismiss and the motion for new trial.
Judgments affirmed. Eberhardt and Russell, JJ., concur.
Miles B. Sams, for plaintiff in error.
Friday May 22 22:19 EDT

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