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Action for damages; from Haralson Superior Court-- Judge Mundy. September 27, 1952.
1. (a) The court did not err in overruling the general demurrer to the petition. The petition does not show by the facts alleged that as a matter of law the plaintiff by the exercise of ordinary care, could have discovered and avoided the consequences of the defendant's negligence.
(b) While it is not ordinarily the duty of an individual to provide for the safe condition of city streets and to place warning signs therein, the facts alleged state a case against the defendant, in that it is alleged that the defendant unlawfully dug the ditch without the knowledge of the city and caused a dangerous condition to exist in the street.
2. A general demurrer does not reach the failure to allege the proper measure of damages. Jones v. Cedartown Supply Co., 65 Ga. App. 80, 83 (15 S. E. 2d, 268); Atlantic Coast Line R. Co. v. Tifton Produce Co., 50 Ga. App. 614 (3) (179 S. E. 125).
3. The allegation that the plaintiff's automobile was used as a taxicab and that the use of the same was worth $15 a day to the plaintiff is not subject to special demurrer. Pleading of evidence by which ultimate facts must be proved is not required.
4. Other exceptions not argued or insisted on are treated as abandoned. The court did not err in overruling the demurrers to the petition.
M. J. McGuire sued H. C. Daniell to recover damages to his automobile allegedly caused by the tortious conduct of the defendant. The petition as finally amended alleged in substance: that on or about July 23, 1948, the defendant negligently and tortiously dug a ditch about two feet deep across a certain public street in the City of Bremen and left it without barricades, light, or warning to persons using the street; that the ditch was dug without legal authority from the City of Bremen and without the city's knowledge; that, when the plaintiff approached said ditch, it was dark and no street lights were burning at that point; that the plaintiff did not know that the ditch was there until he hit it while driving at not more than 25 miles per hour in the exercise of ordinary care; that a week after the ditch was dug the defendant was tried by the Mayor of Bremen and fined for unlawfully digging the ditch; that the plaintiff's automobile was worth $1500 before being damaged by running into the ditch, and $1200 thereafter.
General and special demurrers were filed to the petition as amended, and all were overruled except the demurrer to the allegation as to the trial and conviction of the defendant in the mayor's court for illegally digging the ditch, which was sustained. The defendant excepts to the overruling of his general and special demurrers.
D. B. Howe, contra.
Joseph S. Crespi, for plaintiff in error.
Saturday May 23 04:06 EDT

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