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NEW CIGAR COMPANY v. THE BROKEN SPUR, INC., et al.
38739.
Tort; automobile and truck collision. Fulton Civil Court. Before Judge Wright.
FRANKUM, Judge.
It is true that a petition, when considered on general demurrer, must be construed most strongly against the pleader, and that in applying this rule the petition should be construed in the light of its omissions as well as its averments. [citations]. But this does not mean that the petition must be given a strained construction, in violation of its reasonable and necessary intendment. [citations]." Toler v. Goodin, 200 Ga. 527, 534 (37 S. E. 2d 609).
The New Cigar Co., hereinafter referred to as the plaintiff, filed suit in the Civil Court of Fulton County against The Broken Spur, Inc., doing business as M & M Company, and Holan Corporation of Georgia, hereinafter referred to as the defendants, for damages resulting from a collision between an automobile of the plaintiff and a truck of one of the defendants.
Succinctly, the petition alleges the following facts: That the plaintiff's vehicle was being driven in a northerly direction on Everee Inn Road near its intersection with Gonza Drive in Griffin, Georgia; that Everee Inn Road is an asphalt, two-lane street, 18 feet wide with a road shoulder approximately 4 1/2 feet wide on the east side; that "The west side of Everee Inn Road, at the time and place aforesaid, at or near its intersection with Gonza Drive was entirely occupied with the buildings and yards of the Holan Corporation of Georgia"; that the plaintiff's vehicle was being driven at a speed of approximately 40 miles per hour when it came across the crest of a hill 500 yards south of the aforesaid intersection, and at that time, the driver of the plaintiff's vehicle could see the bright headlights of another vehicle shining south; that the driver of the plaintiff's vehicle reduced his speed to approximately 35 miles per hour; that the vehicle which the driver of the plaintiff's automobile saw with its headlights shining south was in a stationary position on the east or wrong side of Everee Inn Road for south-bound traffic and was on the east shoulder with approximately 3 feet of said vehicle extending onto the asphalt portion of Everee Inn Road; that the driver of the plaintiff's vehicle was familiar with the said road and was aware of the fact that at two houses located on the east side of said road, persons frequently park their vehicles on the east shoulder of Everee Inn Road "headed in the wrong direction"; that the parked vehicle was a 1950 White tractor owned by the defendant, The Broken Spur, Inc., and was being used in the course of and the scope of The Broken Spur, Inc.'s, business; that no flagman, signal flares, or warning devices of any kind were on the south side of the tractor to warn the plaintiff's driver that the road behind the tractor was blocked; that as the plaintiff's driver reached the front end of said tractor he immediately steered the plaintiff's automobile to the left with the intention of passing to the left of the parked tractor; that no approaching traffic could be seen, and the driver of the plaintiff's automobile reduced his speed to approximately 25 miles per hour; that "Just as the plaintiff's vehicle passed the headlights of said stopped vehicle the driver suddenly, for the first time, saw that attached to said White tractor was a large flatbed trailer loaded with steel which was perpendicular to said tractor and backed across the road with the rear wheels of said trailer up into the edge of the driveway to the defendant Holan Corporation of Georgia"; that the plaintiff's automobile skidded into and under the flatbed trailer loaded with steel and damaged the
automobile in the amount of $500; that "At the time of said impact there were no lights on plaintiff's side of said flatbed trailer other than a small light thirteen inches back from the right front edge of the trailer and one other small light on the right rear of the trailer twenty inches from the back edge," and the view of these lights was blocked by the tractor and its headlights, and that the only other light in the area was a small street light located approximately 15 feet west of the west side of Everee Inn Road and 46 feet north of the aforesaid driveway; and that the tractor and trailer had been completely across and blocking the road in excess of five minutes at the time of the collision.
The petition further alleges: "At all times herein referred to, the agent, servant and employee of defendant Holan Corporation of Georgia, Allen B. Chambers, who was acting within the scope and course of his employment, had ordered said truck and tractor across the road in the position it was at the tins of the collision and was attempting to direct traffic on the opposite side of the trailer from the plaintiff."
The plaintiff pleaded a city ordinance requiring that, "No person shall park any vehicle upon a street . . . in such manner or under such conditions as to leave available less than 10 feet of the width of the roadway for free movement of vehicular traffic."
The plaintiff charged The Broken Spur, Inc., with the following acts of negligence: "In blocking a public highway; in blocking and crossing and obstructing a public street and highway during the hours of darkness; in continuing to block and obstruct a public street and highway in excess of five minutes; in failing to have out any signals, flares, or guards to warn oncoming traffic in the direction in which the plaintiff's vehicle was traveling of said obstruction; in failing to have a sufficiently well lighted trailer for oncoming traffic to see; in continuing to burn that trailer's bright traffic lights so as to block the vieW of the driver of the plaintiff's vehicle; [and] in obstructing the street so as to leave less than 10 feet of the width of the roadway for free movement of vehicular traffic in violation of the City of Griffin's ordinance, Article 12, Section 103, which is negligence per se." And, in addition, charged the defendant Holan Corporation of Georgia with the following acts of negligence: "In allowing and ordering a public road to be blocked by tractor-trailer; in failing to have out signals, flares, or guards to warn oncoming traffic in the direction in which the plaintiff's vehicle was traveling; in causing blockage and obstruction of a public street and highway in excess of five minutes; in backing across and obstructing a public street and highway during the hours of darkness; [and] in obstructing the street so as to leave less than 10 feet of the width of the roadway for free movement of vehicular traffic in violation of the City of Griffin Ordinance, Article 12, Section 103, which is negligence per se."
The defendants filed a general demurrer to the plaintiff's petition which was sustained by the trial court. The plaintiff assigns this ruling as error in this appeal.
Upon consideration of a general demurrer the petition must be strictly construed against the pleader, and "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 will prevail in determining the rights of the parties." Krueger v. MacDougald, 148 Ga. 429 (1) (96 S. E. 867). And the petition must be construed in light of its omissions as well as its averments. Chalverus v. Wilson Mfg. Co., 212 Ga. 612 (1) (94 S. E. 2d 736); Hulsey v. Interstate Life &c. Ins. Co., 207 Ga. 167 (60 S. E. 2d 353); George v. Continental Wrecking Corp., 101 Ga. App. 538 (114 S. E. 2d 383). Yet, as stated in Athens Mfg. Co. v. Rucker, 80 Ga. 291, 294 (4 S. E. 885), "all pleadings must receive a construction in accordance with the natural intendment of the words and language of the pleadings." See Toler v. Goodin, 200 Ga. 527 (37 S. E. 2d 609), and Hay v. Butts, 95 Ga. App. 285 (97 S. E. 2d 720).
While the petition does allege that two small lights were located on the side of the trailer (one near the rear and one near the front), there is also an allegation that the tractor of The Broken Spur, Inc., and its headlights blocked the view of these lights. The only reasonable construction to be placed on these allegations is that the combination of the position of the tractor and the glare of its headlights blocked the vision of the plaintiff's driver to the extent that he could not see the small lights on the trailer until he was approximately abreast of the defendant's truck. These allegations do not, when construed according to their natural import and the readily apparent intendment of the petition, demand, as contended by the defendants, the construction "that the trailer . . . could have been seen had plaintiff's driver merely looked, and thus demands a finding that the driver either saw it, and did nothing, or else simply remained oblivious to a patent situation by not looking at it." Such construction would constitute a strained construction of the language of the petition.
"It is not necessarily such a lack of ordinary care on the plaintiff's part as will defeat a recovery for the operator of a properly equipped automobile to drive it in the night at such a rate of speed that he can not stop it within the limit of his vision ahead. Whether he is to be chargeable with negligence or not depends upon what is reasonable under all the circumstances; and unless the facts shown unmistakably point to but one conclusion, the decision of that question is especially one for determination by the jury. To hold otherwise would force the traveler to assume that the highway was liable to be obstructed, and, in view of this, so to travel that he would not collide with any obstructions in the highway, however negligently they might have been created and maintained." Bach v. Bragg Bros. & Blackwell, Inc., 53 Ga. App. 574, 577 (186 S. E. 711). See also, McCurry v. Moffett, 80 Ga. App. 761 (57 S. E. 2d 451); Simmons v. Jones, 55 Ga. App. 831 (191 S. E. 490); Adams v. Jackson, 45 Ga. App. 860 (166 S. E. 258); Southern Bakeries Co. v. White, 103 Ga. App. 146 (118 S. E. 2d 724).
While it has been held that when one can see and does see an obstruction in a road in time to avoid an injury to himself, he cannot recover for injuries resulting from a collision with such obstruction, the petition in the instant case affirmatively alleges that the driver of the plaintiff's automobile was not guilty of negligence, could not have avoided the consequences of the negligence of the defendants by the exercise of ordinary care, and did not see the trailer until the collision was imminent. State Highway Dept. v. Stephens, 46 Ga. App. 359 (167 S. E. 788); and Fraser v. Hunter, 42 Ga. App. 329 (156 S. E. 268), are, therefore, clearly distinguishable.
The trial court erred in sustaining the general demurrer.
Judgment reversed. Townsend, P. J., Carlisle and Jordan, JJ., concur.
Greene, Neely, Buckley & DeRieux, John D. Jones, Moise, Post & Gardner, J. William Gibson, contra.
Smith, Swift, Currie, McGhee & Hancock, Tom Watson Brown, for plaintiff in error.
DECIDED MARCH 17, 1961.
Friday May 22 23:41 EDT


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