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ROGERS v. JOHNSON.
36119.
Tort; automobile collision. Before Judge Perryman. Taliaferro Superior Court. January 21, 1956.
QUILLIAN, J.
1. The petition containing general allegations of negligence was sufficient as against general demurrer.
2. The rulings on the special demurrers, with one exception, were not error, and the error in overruling that demurrer became harmless when no evidence was submitted in support of the allegations against which it was directed.
3. The evidence supported the verdict and the trial judge did not err in denying the motion for a new trial.
Mrs. Lucy Chafin Johnson filed suit in Taliaferro Superior Court against Claude Lee Rogers claiming damages for the death of her husband, E. W. Johnson, as a result of the collision between an automobile owned by her husband and an automobile and house-trailer owned by the defendant.
The material allegations of the petition are: The plaintiff's suit is to recover the full value of the life of her husband, E. W. Johnson, whose death was caused by the negligence of the defendant, who is a resident of Lawrenceburg, Tennessee, and was operating an automobile with house-trailer attached on the public highways of Georgia at the time of the collision with an automobile belonging to the plaintiff's husband. On January 23, 1953, about 10:30 p. m., the plaintiff's husband was riding in his said automobile which was being operated by Burl Johnson, Jr., at a speed of approximately 40 miles per hour in a westerly direction on U. S. Highway No. 78, traveling towards the City of Washington, Wilkes County, Georgia, on his right-hand of the center line of said highway. The defendant was driving his automobile on said highway in an easterly direction traveling towards the City of Thomson, McDuffie County, Georgia. "When plaintiff's husband's said automobile reached a point on the right-hand side of said highway, approximately 75 feet from the automobile being operated by the defendant, which had attached thereto a house-trailer of approximately 32 feet in length, defendant had the highway practically blocked and completely blocked to all approaching traffic moving in an opposite direction from which defendant was traveling; that defendant's automobile was approximately 16 feet in length, and together with the trailer attached thereto made a total length of approximately 48 feet; that the highway at this point had a width of 20 feet with shoulders of 6 feet; that defendant was traveling in an easterly direction, and turned his automobile and trailer to the left in order to get to a filling station on the left-hand side of the highway, and in doing so completely blocked the highway to plaintiff and all traffic approaching from the opposite direction of defendant.
"Plaintiff shows that, although the car in which her said husband was riding was being operated in a legal and lawful manner by the said Burl Johnson, Jr., when the defendant's car and trailer turned to the left, entirely blocking his path, it was impossible for Burl Johnson, Jr., to stop the automobile he was driving in time to avoid striking the defendant's vehicle. That the defendant had no lights on his car or trailer that were visible to the said Burl Johnson, Jr., operator of the automobile belonging to plaintiff's husband, and the first notice he had that the highway was blocked by the defendant's car and house-trailer was a dark, black mass entirely blocking the roadway to plaintiff's automobile traveling in the opposite direction. That although he used every effort to avoid striking the defendant's vehicle, Burl Johnson, Jr., was unable to prevent his automobile from colliding with the automobile and house-trailer being operated by the defendant."
The plaintiff's husband suffered a broken neck from the collision, from which he died a few days thereafter "solely by and through the negligence of the defendant, such negligence of the defendant being as follows: (a) In driving his automobile with the long house-trailer attached thereto to the left-hand side of the highway, across said highway, entirely blocking all traffic approaching from the opposite direction. (b) In failing to have any lights on his car or trailer that would be visible to approaching traffic. (c) In failing to keep a lookout ahead in the direction of travel of cars approaching from the opposite direction, and in failing to observe and heed the highway and traffic conditions. (d) And in failing and refusing to take any reasonable precautions and in failing to exercise any degree of care or diligence to protect other persons traveling on the highway, while driving his automobile and house-trailer from the right-hand side of said highway to the left thereof, entirely blocking said highway as to all traffic approaching from the opposite direction.
"These acts, plaintiff alleges, constituted extreme carelessness and gross negligence on the part of the defendant."
Pursuant to the provisions of Code 68-803 plaintiff elected to bring this action in the county of her residence.
The defendant demurred generally to the petition on the ground that it set forth no cause of action against him. The defendant also demurred specially to subparagraph (a) of paragraph 16 of the petition on the ground that "no act of negligence by this defendant is alleged in said paragraph, there being no law prohibiting defendant from driving across said highway." The defendant also filed his answer to the petition, in which he denied that the collision was caused by his negligence and alleged that by the exercise of ordinary care said Burl Johnson, Jr., could have avoided colliding with the defendant's vehicle and that said collision was caused by the negligence of the agent and driver of the plaintiff's husband. The defendant's demurrers to the plaintiff's petition were overruled and the case proceeded to trial.
Dr. Morgan Charles Adair testified for the plaintiff: that he treated her husband in Washington, Georgia, for injuries which he received in a wreck on January 23, 1953; that he had a fracture, a dislocation of the fifth cervical vertebra, and was completely paralyzed from the neck down; and that his death certificate, signed by Dr. Louis O. Manganiello, showed the cause of his death to have been excessive temperature with the contributing cause due to a fracture, dislocation of the cervical vertebra with quadriplegia and cord compression, and complete paralysis of all four extremities.
Burl Johnson, Jr., testified for the plaintiff that he was in the U. S. Army on January 23, 1953, and was visiting his folks in Crawfordville, Georgia. He also testified as follows: "I saw Mr. Ernest Johnson [plaintiff's husband] on the night of January 23, 1953, at approximately 7 o'clock in the evening when he came to my house to visit. We were first cousins . . . We went to Floyd Goldman's looking for Frank Hackney and some friends of ours. We found these friends. After we left Court Grounds we went to Washington and from Washington to a club below Washington, the V. F. W. club. The V. F. W. club is three or four miles from the city limits of Washington. We reached the V. F. W. club about 9 o'clock in the evening. Between 7 and 9 we visited friends of ours. We left the V. F. W. club at approximately 10:30. I had alcoholic beverages to drink during the evening. I had one beer before I got to Washington around 7 o'clock and I had a beer and a mixed drink at the V. F. W. club. That was all I had to drink that afternoon. Ernest Johnson drove the automobile to the V. F. W. club and I drove it back home. The car was Ernest Johnson's. As to why I was driving back from the V. F. W. club, we were out together--just dividing up the driving. After we left the V. F. W. club we were en route home. On the way we ran into the side of a house-trailer shortly after we left the V. F. W. club. We were east of Washington when we ran into the house-trailer. I didn't notice it until I was about 20 or 30 feet from it. It looked to me like a big boxcar across the road. There were no lights on the trailer. I was going less than 45 miles per hour. When I came up on the trailer without lights I immediately applied the brakes and pulled sharply to the left. The car and trailer were completely across the highway when I observed it. It was headed to the right of me. It was headed across my driving lane. My driving lane, the right lane, was completely blocked. The entire left lane going into Washington was blocked. That included the shoulder. I struck the trailer on the right rear about the dual wheels, approximately six feet from the end of the trailer. I do not know the exact length of one of those house-trailers; it was one of the big ones. The approximate length was 38 or 40 feet. I didn't know at the time the length of the automobile Mr. Rogers [the defendant] was driving. The way I saw it, I could not get around the trailer to my right. I pulled to the left in order to get off the road to the left. That was my best chance. When I hit the trailer it threw Ernest's head into the windshield and myself into the windshield and we were both knocked out . . . It was raining or had been raining; it was a dark night and the pavement was damp . . . I testified that I had two bottles of beer and one mixed drink. I was not drunk. I had complete control of my faculties. I knew exactly what I was doing in driving that car. Mr. Ernest Johnson was not drunk.
In my opinion he could have driven the automobile. He was not feeling too well and he had driven down there, so with his permission I drove back.
"I drank one of the beers at Goldman's place. I believe Mr. Ernest Johnson had a beer there, too; I am not sure. We were there over an hour and drank only one beer. We left a little after eight and arrived at the V. F. W. club at approximately 9 o'clock. Between 8 and 9 o'clock we stopped at the Friendville Cafe on the way to the V. F. W. club. It took us approximately one hour to drive from Goldman's to the V. F. W. club. It is seven or eight miles from Goldman's to the Friendville Cafe. I am not sure how far it is from the Friendville Cafe to the V. F. W. club--several miles . . . When we got to the V. F. W. club we saw our cousin, the manager of the place, Yancey Martin. Thomas Simonds and several other people were there; I am not sure about the others. They were in and out. We were there from approximately 9 until about 10:30--an hour and a half. Besides talking to Yancey and those other fellows we were playing the slot machine. I recall having one beer and one mixed drink while we were there. I left because Ernest Johnson told me he was feeling ill and wanted to go home and it was getting time to go home . . . I was driving for him . . . The V. F. W. club is between Thomson and Washington, and I turned left and came back towards Washington in a westerly direction on U. S. 78. I have lived in this section all my life until I went into the service. I have driven that road numerous times. I am thoroughly familiar with it. I believe as you come west towards Washington, Georgia, on Highway 78, before you come to the Friendville Cafe where I stopped a few minutes earlier in the evening there is a long straight stretch of road, with a crest in it or a dip on either side of the crest. As you approach the Friendville Cafe you go down a hill and around a sharp curve, then it is a right straight stretch for about a mile, I believe. I do not know where Mr. Troup Harris lives. There is a high place in the road beyond the cafe. There is a curve in the road between the cafe and the V. F. W. club. I could see the cafe off to the side as I came around the curve. It was on my right then. It was on the northerly side of the highway. Opposite the cafe on the south side is a colored church, I believe. My lights were burning on my car. I usually have them on high beam. I think that is where I had them that night. As I came around the curve I saw the cafe on my right down the road and did not see anything else along the cafe except a car in close to the cafe. That was the other car involved in the collision. I saw it when I came around the curve. I traveled from that point where I came around the curve to a point in front of the Friendville Cafe and this colored church and had a collision with the trailer. It was about a mile away between the curve and the Friendville Cafe where the accident happened. The road is comparatively straight there. It is more or less level. I think with my high beam on my headlights giving me maximum vision I could see the farthest with those beams . . . There was a light out by the cafe--just what created the lights I do not know. As I rounded the curve, even if a mile away, I was not paying attention to the lights. My cousin and I were talking. I was not turned and looking because it was a dark night. I was paying attention to the road in front of me. I did not notice whether the lights at the service station were on or not a mile away; I didn't pay attention to them. They could have been on and I not have noticed them. I came down a straight stretch or road towards the cafe and my cousin was still talking. I believe I had my high beams on; I usually do. I was looking straight ahead and did not see the trailer crossing the road until I got 20 or 30 feet from it. As to what it was that prevented me from seeing the trailer crossing the road earlier than that, there were no lights on the trailer and I was not expecting the road to be completely blocked. I did not expect the road to be blocked at all, not there. I did not expect it to be blocked. I did not pay any attention to the car since it was not in the road . . . In my estimation approximately six feet of the trailer overhung the wheels under the trailer. I struck the trailer over the wheels. I do not know whether it pushed the trailer around one way or another. I hit it at an angle. The right front fender and headlight of the car I was driving was the principal part of the car that was damaged . . . My car was catercornered across the center line of the highway. I believe the rear wheels were on my right and the front wheels on my left in the direction I was traveling. That is where it came to a stop. I hit the rear wheels
of the trailer just to the left of the center line . . . As to what prevented me from seeing the trailer across the highway until I got within 20 or 30 feet of it, there were no lights that I could see and I was not expecting anything. I didn't notice the car towing it over to my right-hand side towards the cafe. As to my noticing any lights of that car go on and off, they were not where I could see them. The car was turned at a right angle from me. It was pulled directly at right angles to the highway, the trailer and car, more or less it was."
Thomas P. Simonds testified for the plaintiff that he saw Ernest Johnson and Burl Johnson on the night of January 23, 1953, at the V. F. W. club and they seemed to be in full possession of their faculties. He also testified: "I saw them later that night at the wreck. About half a mile from the V. F. W. When I got to the scene of the accident the trailer and car was all there was there when I drove up. The trailer was crossways of the road. It seemed to have the whole road covered. It had the entire road blocked. I saw where Mr. Johnson's car struck the trailer. It struck it right at the wheel. It seemed to me it was in Mr. Johnson's left lane. As to how much longer after they left the V. W. F. club did I leave, it seemed about ten minutes. I did not stop anywhere on the way. I went straight down the road towards Washington . . . I went around the trailer as I was coming from the V. F. W. club. There are a couple of gasoline pumps in front of the station. I went between the pump and the building. I did not have any difficulty in driving through that way. There was plenty of room for a car to go through there. The front end of the car was pretty close to the gasoline pumps. The car and trailer were kind of at right angles across the road, just as if it had made a sharp left turn and drove straight into the filling station at right angles . . . I don't recall how far away I was from the trailer when I saw it as I came down the road from the V. F. W. club headed towards Washington. I did not almost run into it; there could have been somebody directing traffic, I don't know. My recollection is that I was the first man there. Burl was not directing traffic. He was out of his car. That was before the ambulance arrived. I don't think Mr. Rogers was directing traffic. I don't know who could have been directing traffic; I don't know whether anybody was there or not; I don't know what made me say it. I imagine I was running at a speed of about 45 miles per hour before I realized there had been a wreck. I know the curve to my right as I came around before I hit the straight stretch that the filling station is on. You can not see it after you get out of the curve. I remember going up a small incline as I approached the filling station. I could see it in front of me after I got over the incline. I don't remember the color of the trailer. I did not have any trouble bringing my car to a stop without hitting either one of the vehicles. I didn't have any trouble pulling to my right in the filling station and going on towards Washington. I didn't have anything to drink at the V. F. W. club."
James Johnson testified for the plaintiff that he was the brother of Ernest Johnson and went to the scene of the accident on learning of it and stayed there a few minutes before going to the hospital where his brother was. He testified he saw no lights on the defendant's automobile or trailer.
The plaintiff, Mrs. Lucy Chafin Johnson, testified that her husband, Ernest W. Johnson, had an income of about $3,000 a year from the operation of his grocery store and that she has continued to operate the store since his death.
Mrs. Claude Lee Rogers testified for the defendant that she was his wife and that they had three children, aged 8 through 12; that she and one child were riding on the front seat with her husband and the other two children were on the back seat; and that the house-trailer connected with their car was their home. She also testified: "As to what caused us to turn into the filling station at the Friendville Cafe, we were riding out the highway, we were low on gasoline and we pulled into this filling station to get the gasoline at the time we were hit . . . The filling station was on my left side. I was awake at the time. I assisted my husband in driving the car. We had a big mirror on either side of the car that extended out; you could see in the back as well as in the front. There was a mirror on my side, the right-hand side, as well as on the driver's side. I was assisting him as far as observing the road immediately prior to the accident. There were lights on this filling station. There were lights over the gasoline pumps in front of the building. As my husband turned to the left to enter the filling station we had a gradual left turn. We were pulling right up to the gas tanks. He was approaching the gasoline pumps so that when he came to a stop to get gas they would be on the left side of the car. There were no vehicles in view on the highway in either direction immediately prior to my husband turning to the left to enter that filling station. As to me looking to the front and to the rear, I certainly did. My car was completely off the highway at the time the trailer was hit. The trailer has four wheels. There was about a six-foot extension over those back wheels. I don't know how much extension forward of the front wheels. The length of the trailer was 41 feet. The rear end of the trailer extended six feet past the wheels. The rear wheels were on the highway, those back wheels, just the back that was extending out into the highway. That was about six feet. The inside height from the floor to the ceiling was eight feet, half an inch. The floor of the trailer was about two feet above the ground. Just too high for me to step up. I had to use a platform when I was using it. The top of the trailer was about a foot and a half above the eight feet. There was a smokestack higher than the top of the trailer. The width of the trailer was eight feet. It was made of aluminum. The lower part was painted blue and the top was silver. It was kind of light blue. The top part of the trailer was silver. There was a silver streak coming down the side of the blue and the silver, about two feet wide. There were three lights on either side of the trailer. One on either end and one in the center. The lights were yellow. I saw those lights immediately following the collision and they were on. They were on as we drove down the road approaching that section that night. They were about two inches in diameter and were fairly bright. We had two stop lights on the rear of the trailer on either side and one big light in the center. Those lights were red. The back red light in the center was about four inches in diameter. The automobile we were riding in that was towing the trailer was light blue. It has been painted since. He had the lights on the automobile and then the blinker lights to indicate a turn. The blinker light is located in the rear of the car. It blinks on the front end of the car, too. I think it is red . . . I talked with Mr. Johnson. I saw him walking around. He appeared to be stumbling around.
As to his speech when I talked to him he was thick tongued. I formed an opinion about his conduct at that time. I formed an opinion he was drunk."
Erskin Wickersham testified for the defendant that he had a B.S. degree in civil engineering from The Citadel and was a surveyor. He made two drawings from a survey of his in the vicinity of the Friendville Cafe. The paved portion of the highway was 22 feet. From the edge of the highway to the edge of the pump island is 24.9 feet. From the northerly edge of the pump island to the southerly edge of the cafe building is 15.9 feet. Between the southerly edge of the highway and the northerly edge of the drainage ditch is 10 feet. The shoulder on the south side of the highway in front of the Friendville Cafe is 10 feet. The distance from the ditch east of the Friendville Cafe measured westerly to the gasoline pump island is 66 feet. The elevation from the highway in front of the Friendville Cafe to the highest point on the small incline 1,500 feet east is a difference of slightly over two feet. In other words the highway in front of the Friendville Cafe is two feet below the highest point on the small incline. He is five feet tall and has sat behind the wheel of a 1950 Chevrolet Sedan and measured the distance from the level of his eyes to the ground; that distance is 4 1/2 feet. He also testified: "I would have to say that a person approaching the Friendville Cafe in a westerly direction from the east in the direction of Thomson could first see an object ten feet high in front of the Friendville Cafe at a distance of 1500 feet. That is some several hundred feet east of the second road sign. There are no curves between the 1500-foot mark and the Friendville Cafe. There are no obstructions for 1500 feet . . . A person of my height in a 1950 Chevrolet approaching an object having a height of six feet in front of the Friendville Cafe could first see that object 1300 feet away. A person driving a 1950 Chevrolet Sedan from east towards the west approaching the Friendville Cafe could see all of the pavement in front of him and in front of the Friendville Cafe without any dip in the road at all from a distance of about 1100 feet."
D. S. Harris testified for the defendant that he was with the Georgia State Patrol on January 23, 1953, and investigated a collision between an automobile owned by E. W. Johnson and one owned by Claude Lee Rogers which occurred that night. He also testified: "We smelled alcohol on Burl Johnson's breath in the course of our investigation of the accident. In my opinion he was under the influence of alcohol at the time of the accident. . . . From the position in which I found the two vehicles upon arriving at the scene of the accident, the right traffic lane or west bound traffic was blocked. That left only a small portion plus the shoulder on the left lane for west [east] bound traffic . . . As to an average driver in full control of his faculties, driving at a rate of speed safe for the condition of the west highway and the view that he had ahead of him there, that would still be hard to answer because there was an accident there. As to whether alcohol played a part in the accident or not, impeded his judgment, slowed his reaction so he wasn't able to stop, or whether a normal person would have been able to stop under those circumstances not under the influence of alcohol, I believe a normal person ordinarily would, but I couldn't say. I believe a normal person not under the influence could have brought his car to a stop without hitting the trailer under the conditions I found there. As to, from what I was able to observe, Mr. Burl Johnson's drinking, if any, not impairing his judgment to that extent, I wouldn't say as to that, whether it impaired his judgment. It was what a normal person would have done. What we saw was what a normal person would have done under ordinary circumstances."
The defendant, Claude Lee Rogers, testified that he was a chief machinist's mate in the United States Navy and all of his lights and all of his trailer lights were on at the time of the accident. The running lights were located on each side of the trailer, the forward end and on the end several amber running lights. He also testified: "Going down the highway I traveled as a rule about 30 or 35 miles an hour. When the filling station came in view I saw the lights on the cafe and over the gas tanks and that was an ideal place for me to get gasoline. I was running low on gas then. I started my turn, giving my turn signals and turning to my left, the filling station was on my left, at an angle where I could get my car and trailer completely off the highway. I was almost off the highway when the car hit me. He hit me back of the rear wheels. I have four wheels on the trailer, sitting aft of the center line of gravity, and that is where he hit me. I was cutting back over, running off the highway into the gas station, with appropriate signals, and I have two big mirrors on each side where I could look back and also my copilot look back. My copilot is my wife. I looked back in those mirrors to see whether or not there was any traffic approaching me and getting ready to pass me. There was no traffic approaching from the rear at that time. There was no traffic approaching me from the opposite direction before I made the turn. At the time the car hit me about five or six feet of my trailer still extended into the north lane of traffic . . . I was barely creeping, getting off the highway into the filling station. I was going about eight to ten miles an hour. I immediately applied my brakes when I was hit. I brought it to a stop. I noticed the driver of the other car when he got out. That was before the ambulance arrived. He was talking like he had a few drinks from my observation. He was not walking straight, either. I figured he was drunk."
For convenience of expression, in this opinion the plaintiff in error will be referred to as the defendant, E. W. Johnson as the deceased, Burl Johnson, Jr., as the deceased's driver, and the defendant in error, Mrs. Lucy Chafin Johnson, as the plaintiff.
1. The petition in a negligence case, such as the one at bar, is sufficient as against general demurrer when it shows that failure on the defendant's part to exercise the degree of care required of him was the proximate cause of damage done the plaintiff, and does not affirmatively reveal that the plaintiff, or those whose conduct is imputable to him, failed to employ ordinary prudence to avoid the consequences of the defendant's negligence. A. C. L. R. Co. v. Sellars, 81 Ga. App. 381, 386 (59 S. E. 2d 24).
No such factual situation is presented by the averments of the petition in this case, and we merely mention this rule so that it may not be confused with those we hold applicable here. Several rules pronounced by our appellate courts are pertinent in determining whether the petition revealed negligence imputable to the plaintiff, debarring her recovery.
3. The plaintiff's right to recover for the death of her husband is the same as his would have been to recover for injuries sustained by her had he survived the collision. That which would bar his recovery would defeat her action. Bassett v. Callaway, 72 Ga. App. 97 (33 S. E. 2d 112).
4. It must be recognized that in the factual situation shown by the petition, the negligence of the husband's driver, Burl Johnson, Jr., was imputable to the deceased and likewise to the plaintiff. Mayor &c. of Savannah v. Waters, 27 Ga. App. 813 (1) (109 S. E. 918). We will consequently discuss the negligence of the deceased's driver as though he were the plaintiff in the case.
5. Ordinarily, no duty devolves upon the plaintiff to avoid the consequences of the defendant's negligence until he knows, or by the exercise of ordinary care could discover, that he is exposed to the perils created by such negligence. W. & A. R. Co. v. Ferguson, 113 Ga. 708 (2) (39 S. E. 306, 54 L. R. A. 802); Crawford v. W. & A. R. Co., 51 Ga. App. 150 (179 S. E. 852).
Other rulings immediately bearing upon the question of the plaintiff's case in the premises are those relating to a driver's duty to observe and avoid obstacles upon the highway. A driver of a motor vehicle must anticipate that the roadway ahead may be obstructed by objects normally and legally found to be across the road, such as other motor vehicles being driven in a lawful and prudent manner from one side of the road to the other in the process of entering side roads or driveways. Kirkland v. Wheeler, 84 Ga. App. 352, 354 (66 S. E. 2d 348). However, a driver is not bound to anticipate the presence of objects on the roadway that are illegally or negligently placed, such as barriers or road machinery. Trammel v. Matthews, 84 Ga. App. 332, 337 (66 S. E. 2d 183). The law does not require that a driver of a motor vehicle in ordinary circumstances be able to stop the vehicle within the range of his vision (a rule the writer does not approve). Bach v. Bragg Bros., 53 Ga. App. 574 (186 S. E. 711).
The contrary not appearing from the petition, it is presumed that the road ahead of the plaintiff was straight, the weather clear and his lights capable of throwing beams that would reveal objects on the roadway ahead of the automobile. Bassett v. Callaway, 72 Ga. App. 97, supra.
The decisions referred to are in perfect harmony. They mean no more than that whether the obstruction on the road be lawfully or unlawfully there, the driver of a motor vehicle must employ the care of an ordinarily prudent person exercised under similar circumstances to ascertain the presence of and avoid collision with such objects. As was well said in the case of Davies v. West Lumber Co., 32 Ga. App. 460 (1) (123 S. E. 757): "The motor-vehicle act (Ga. L. 1921, pp. 256-258; Park's Code Supp. 828 a et seq.) 'imposes certain statutory duties upon drivers of automobiles, with reference to persons and property using the highway in the ordinary course of travel. These are cumulative, and do not destroy the common-law duties of drivers of automobiles relatively to persons and property using the highway. The duty at common law of a driver of an automobile, relatively to persons and property on the highway, is to exercise ordinary care to avoid injuring them . . . The standard of ordinary and reasonable care is invariable, such care being that of every prudent man . . . But the care of a prudent man varies according to the circumstances, dependent upon the degree of danger.' Giles v. Voiles, 144 Ga. 853 (1), 855 (88 S. E. 207); Central R. Co. v. Ryles, 84 Ga. 420 (11 S. E. 499); Central of Ga. Ry. Co. v. Hartley, 25 Ga. App. 110 (6) (103 S. E. 259); Fincher v. Davis, 27 Ga. App. 494 (5) (108 S. E. 905). But whatever the driver's duty, in the exercise of the ordinary diligence required by law, may be as to manifesting especial alertness and precautions, when traversing a frequented city street, in anticipating and detecting the presence of pedestrians and avoiding injury to them, it is for the jury to apply the unvarying standard of ordinary care to the facts and exigencies of each particular case; and it would have been erroneous to charge in effect that an automobile driver must exercise extraordinary care in any such particular exigency. Giles v. Voiles, supra."
So it is, as to whether the obstruction on the public thorough fare is of such nature as a driver would ordinarily expect to be there, ordinary care requires him to be more alert to discover its presence than to discover an object that a reasonably careful person would not normally anticipate must confront him as he drives along.
While recognizing the rule pronounced in Bassett v. Callaway, 72 Ga. App. 97, supra, that the operator of a motor vehicle is presumed, the contrary not appearing, to have a clear view of unilluminated objects on the road that come within the range of the lights of his vehicle (lights conforming to requirements of law), we are of the opinion that the presumption should not be extended to require the driver to be able to discover the shifting positions of such objects, particularly where the objects move gradually from one position to another. The petition showed that the defendant's automobile had attached to it and was drawing after it a 32-foot trailer. Clearly a left turn of the vehicle across the road would of necessity be negotiated gradually.
The rule is well established that "diligence and negligence, including contributory negligence and proximate cause, are ordinarily peculiarly for the jury," and this court will decline to solve such questions on demurrer, except where they appear palpably clear, plain and indisputable. Alford v. Ziegler, 65 Ga. App. 294 (16 S. E. 2d 69); Moore v. Shirley, 68 Ga. App. 38 (3) (21 S. E. 2d 925); Georgia Power Co. v. Blum, 80 Ga. App. 618 (57 S. E. 2d 18).
It must be concluded that since the defendant's automobile was drawing a trailer after it, the automobile necessarily preceded the trailer while approaching the deceased's automobile from the opposite direction and obscured the trailer from the view of the deceased's driver so that he could not be able to know of the trailer's presence on the road until the defendant's automobile, in the process of making the left turn into the filling station lot, gradually revealed the trailer following it.
6. None of the special grounds of demurrer have merit, except ground 5. The specification of negligence demurred to reads: "And in failing and refusing to take any reasonable precautions and in failing to exercise any degree of care or diligence, to protect other persons traveling on the highway, while driving his automobile and house trailer from the right-hand side of said highway to the left thereof, entirely blocking said highway as to all traffic approaching from the opposite direction." Ground 5 of the demurrer reads: "Defendant demurs specially to subparagraph (d) of paragraph 16 of plaintiff's petition for the reason that nowhere in said paragraph or in said petition does plaintiff set forth the 'reasonable precaution' which she alleges defendant failed and refused to take in said subparagraph."
In Atlanta &c. R. Co. v. Whitehead, 31 Ga. App. 89 (119 S. E. 539), it was held: "Mere general allegations that the fire was caused by the careless and negligent operation of the train, without averring any particular causal defect in the machinery used, or any special lack of care in the operation of the train, while sufficient as against general demurrer, renders the petition subject to a timely special demurrer." And in Carter v. Powell, 57 Ga. App. 360 (3) (195 S. E. 466), it was held: "The allegation contained in the petition, 'that said engineer failed to otherwise exercise due care in approaching said crossing in order to avoid doing injury to any person or property upon said crossing, and in order to avoid doing injury to petitioner at said crossing as alleged,' was subject to the special demurrer that it was a conclusion of the pleader." Again, in American Thread Co. v. Rochester, 82 Ga. App. 873 (2) (62 S. E. 2d 602), it is said: "But a petition containing only such general allegations of negligence is not sufficient to withstand a special demurrer setting up that it fails to set forth any specific act of negligence."
The subparagraph quoted above and criticized by the defendant's demurrer was so general and lacking in particularity that, had it not been demurred to, the plaintiff might have supported it by proof of any conceivable act of negligence on the defendant's part. Thus it did not put the defendant on notice of what issue might be submitted to the jury or what contention as to his negligence he would have to defend against. We think that ground 5 of the special demurrer called for information to which the defendant was entitled, and that the court erred in overruling it. The function of a special demurrer is to define the scope of the pleadings and fix the range of the evidence. The plaintiff invokes the rule that general conclusions of negligence are to be construed as relating to and being supported by the specific acts of negligence; but the rule does not apply when the general allegations of negligence are set forth as separate, independent charges or specifications of negligence. Carter v. Powell, 57 Ga. App. 360, supra, at page 372.
While the error in this ruling clearly appears, the question as to whether the error was prejudicial to the defendant is more difficult.
Ordinarily, error is presumed hurtful unless it appears to have had no effect upon the result of the trial. This court held in Loudermilk v. Terrell, 73 Ga. App. 194, 196 (35 S. E. 2d 926), that where the plaintiff in a negligence case relies only upon particular specifications of negligence, only errors concerning them can be considered in deciding whether a new trial will be granted. There were three specifications of negligence, other than that which we hold subject to special demurrer, set forth in paragraph 16 of the petition. The proof of any of these authorized the submission of the case to the jury. The evidence introduced on the trial of the case did not establish any fact in reference to any lack of prudence on the defendant's part, except the acts charged in these three specifications of negligence. We believe under the holding in Loudermilk v. Terrell, supra, and a similar pronouncement of the same principle in Burnsed v. Spivey, 52 Ga. App. 646 (184 S. E. 410), the error in overruling the ground of demurrer referred to must be held to have been harmless.
7. This brings us to the question as to whether the verdict was supported by evidence. The case is a close one on the issues of whether the defendant was negligent, whether the lack of care on the part of Burl Johnson, the deceased's driver, was such as debars the plaintiff's recovery, and as to whether Burl Johnson's negligence or that of the defendant was the proximate cause of the fatal collision. The evidence as to each of these issues appeared to preponderate in favor of the defendant, but the plaintiff's evidence was sufficient to create a question of fact as to each of the issues mentioned. This court laid down the rule in Callahan v. Cofield, 61 Ga. App. 780 (5) (7 S. E. 2d 592), as follows: "Except in plain and indisputable cases, what negligence as well as whose negligence constitutes the proximate cause of an injury is for determination by the jury under proper instructions from the court."
There was no issue as to the marital status of the plaintiff and the deceased, or as to earning capacity and age. The evidence must be held to have supported the verdict.
Judgment affirmed. Felton, C. J., Gardner, P. J., Townsend, Carlisle and Nichols, JJ., concur.
Colley & Orr, contra.
Earle Normal, Erwin, Nix, Birchmore & Epting, for plaintiff in error.
DECIDED NOVEMBER 21, 1956.
Saturday May 23 02:36 EDT


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