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Action for damages. Before Judge McClure. Chattooga Superior Court. January 9, 1953.
The petition, which alleged negligence per se on the part of the defendant, does not show on its face as a matter of law that the plaintiff in the exercise of ordinary care could have discovered the defendant's negligence and could have avoided its consequences, so as to preclude a recovery by the plaintiff; therefore the court erred in sustaining a general demurrer to the petition.
that, on April 28, 1952, at approximately 8:20 p.m., the plaintiff was driving his Ford automobile north on Georgia State Highway Number 27, a public highway of Georgia; that, as the plaintiff reached a point about 100 yards north of the city limits of Summerville, Georgia, he reduced his speed to approximately five miles per hour and extended his arm to the left of his automobile and horizontally, and drove his automobile to the west and to the left of the center line of the highway and onto the left portion of the highway in an attempt to make a left turn into an intersecting field road which is commonly traveled; that, when the plaintiff's automobile reached a point in turning to the left as aforesaid so that the left front wheel of his automobile was approximately one foot off the pavement onto the said field road, it was struck on the right front fender and "dead center" by an oncoming truck traveling south on said highway; that, at such time and prior to the plaintiff's turn and the collision, the headlights of the plaintiff's automobile were burning and brightly illuminated; that the plaintiff had his vehicle under perfect supervision and control and was in the exercise of ordinary care; that, immediately before making the left turn, the plaintiff looked north in order to see if any vehicles were approaching him on the highway from the opposite direction, and the right of way appearing to be clear and unobstructed, he made the left turn; that, at the time of the collision, said truck was being operated at an excessive and unlawful rate of speed in excess of 65 miles per hour; that the defendant's truck was being operated by the defendant's servant in the scope of his employment and of the defendant's business; that at such time it was dark and the defendant's truck was being operated without any headlights or lights of any kind burning, and the plaintiff did not see the truck approaching nor could he have seen such truck in the exercise of ordinary care; that for approximately 500 yards directly north of the point of collision the highway is completely straight, and the defendant's servant, had he kept a proper lookout ahead, could have avoided the collision by driving to his left of the center line and around the plaintiff's automobile; that the plaintiff was damaged in enumerated particulars; that such damage was directly and proximately caused by the negligent acts of the defendant's servant, more particularly described as follows: in driving said vehicle at a speed greater than 55 miles per hour, in violation of the law of Georgia, the same being negligence per se; in failing to keep a proper lookout ahead; in failing to sound his horn or other signaling device when approaching the point on the highway where the plaintiff's automobile was turning to the left of the center line into an intersecting road; in driving and operating said vehicle on a public highway at night with no headlights burning or illuminated, in violation of Code 68-302, such being negligence per se; in operating such vehicle upon the highway at a speed greater than was reasonable and safe, having due regard for the width, grade, character, traffic, and common use of said highway. The court sustained a general demurrer to the amended petition and dismissed the action, and the plaintiff excepts.
The defendant contends that the petition shows on its face that the plaintiff's own negligence was the proximate cause of the collision and for this reason the court properly sustained the general demurrer and dismissed the action. We do not agree with him. The petition does not allege facts showing any specific acts of negligence on the plaintiff's part or that the plaintiff in the exercise of ordinary care could have discovered the defendant's negligence and could have avoided the consequences thereof, and it is not necessary for the plaintiff to negative his negligence. Bach v. Bragg Bros. & Blackwell, Inc., 53 Ga. App. 574, 577 (186 S. E. 711). Besides, except in clear and indisputable cases, of which this is not one, questions of negligence, comparative negligence, and proximate cause are questions for a jury.
For a case involving practically the same facts as the instant case (except as to the hour of the collision), see Callaghan v. Elliott, 84 Ga. App. 90 (65 S. E. 2d 633).
The court erred in sustaining the general demurrer and in dismissing the action.
Mitchell & Mitchell, Thomas J. Espy, Jr., contra.
Bobby Lee Cook, for plaintiff in error.
DECIDED MAY 2, 1953.
Saturday May 23 04:30 EDT

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