The petition sets out a cause of action good against the general and special demurrers urged thereto, and the trial court properly overruled the same.
On July 13, 1953, Mrs. Mary Young (hereinafter called the plaintiff) filed in the Civil Court of Fulton County, her petition against Billy Lanier Hammond (hereinafter called the defendant), in which she sought to recover of the defendant $378 as property damages by reason of the alleged negligence of the defendant in the operation of his 1946 Mercury convertible automobile. It appeared from the petition that on June 27, 1953, around 10:30 o'clock in the morning, the plaintiff was driving her 1947 Oldsmobile automobile in a northerly direction along Murphey Avenue, S. W., in the City of Atlanta. The plaintiff was south of the intersection of Murphey Avenue and Shelton Avenue, S. W., and at the same time the defendant was operating his car in a westerly direction along Shelton Avenue and had reached a point east of the intersection of Murphey Avenue and Shelton Avenue. Murphey Avenue is a through street, and Shelton Avenue does not cross Murphey Avenue but dead ends at this junction. At said time and place, the plaintiff was on her right side of the street and was going across the intersecting junction of Murphey Avenue and Shelton Avenue, when suddenly, without stopping or warning of any kind, the defendant drove his automobile into this intersecting junction where the plaintiff was at the time, and the plaintiff swerved her automobile to the right in order to prevent being hit by the defendant, but said defendant did run into the plaintiff, striking the left front side of her ear causing substantial damage thereto. There were in existence the following valid and subsisting ordinances of the City of Atlanta: Section 88-919: "The driver of a vehicle approaching an intersection shall yield the right of way to a motor vehicle which has entered same from a different street." Section 88-918: "When two vehicles enter an intersection from different streets at approximately the same time the driver on the left shall yield the right of way to the vehicle on the right."
The reasonable market value of the plaintiff's automobile before the collision was $800, and thereafter, and as a result thereof its reasonable market value was reduced $378, making its market value only $422. The collision of these cars was proximately caused by the negligence and failure to exercise ordinary care on the part of the defendant in the following particulars: in operating his car upon a public highway in this State while under the influence of intoxicating liquor; in failing to stop at the entrance to a through highway in violation of section 88-920 of the traffic ordinances of the City of Atlanta, which is negligence per se; in failing to yield the right of way to a motor vehicle which had entered an intersection of a through street or which was approaching on said through street so as to constitute an immediate hazard, which is negligence per se; and in failing to yield the right of way to an automobile which had entered the intersection from a different street, in violation of section 88-918 of the traffic ordinances of Atlanta, same being negligence per se. The plaintiff prayed for $378 damages.
The defendant demurred generally to the petition because no cause of action was set out, and specially because it fails to allege that the injury and damage to the plaintiff was not the result of her own negligence, in that the petition fails to show at what speed she was traveling, and fails to show that she was within the inner fire limits, and that her speed exceeded 25 miles an hour; that said petition fails to allege and disclose that the plaintiff was without fault, and fails to allege by specific pleading the particulars of her conduct, driving and control of her car, and same cannot now form the basis of any conclusion that she was without fault and did not contribute to her injury.
The general demurrer of the defendant is without merit. The plaintiff alleges that the defendant operated a car in violation of the State law, in that he was under the influence of intoxicating liquors at the time. Code 68-307, 68-9908. The plaintiff further alleged that the defendant operated his car at said time and place in violation of valid and subsisting ordinances of the City of Atlanta, namely city code sections 88-918, and 88-920. It is a violation of the city ordinance for a motor vehicle to fail to stop at the entrance to a through highway or street, and it is alleged that Murphey Avenue is a through highway and that the defendant failed to stop at the entrance thereof. And it is a violation of the city law to fail to yield the right of way to a motor vehicle which has entered a through highway or which is approaching so closely thereto as to constitute an immediate hazard; and it is alleged that the plaintiff had the right of way in this intersection, proceeding northerly along Murphey Avenue, a through street, and that the defendant failed to yield same to her, but carelessly ran into and struck her car; and it is set out that it is a violation of the city traffic ordinance to fail to yield the right of way to a motor vehicle which has already entered a street intersection, and that the defendant failed to yield the right of way to the plaintiff, who had entered such intersection ahead of him, and from a different street. It constitutes actionable negligence for the defendant to operate his car in violation of these ordinances, where such operation is a proximate cause of the damage to the plaintiff's automobile. It also constitutes actionable negligence for the defendant to operate his car while under the influence of intoxicating liquors, where same contributes to and is a cause of the defendant's running into and striking the plaintiff's car. It is so alleged in this petition. There is no merit in the demurrers, general and special.
Furthermore, the plaintiff is not required to plead that she acted with due diligence in the operation of her automobile at said time and place. She is not required to allege that she operated her car properly at said time and place.
It follows that the judge properly overruled said demurrer.
Judgment affirmed. Townsend and Carlisle, JJ., concur.