Opinion
35482.
DECIDED JANUARY 20, 1955.
Action for damages. Before Judge Hendrix. Fulton Superior Court. October 7, 1954.
J. Walter LeCraw, for plaintiff in error.
Garland Alaimo, contra.
The court did not err in overruling the defendant's demurrers to the petition.
DECIDED JANUARY 20, 1955.
Hattie Jenkins filed a suit for personal injuries against Troy Goodrum in Fulton Superior Court. The defendant filed general and special demurrers to the petition. The judge overruled the general demurrers and sustained three of the special demurrers. The defendant now excepts.
The plaintiff pleaded in substance the following: On May 11, 1954, she was a passenger in a 1951 Ford coach automobile being driven east on Memorial Drive by Minnie Henton. The plaintiff was a guest passenger seated in the right front seat, and had no control over the movement of the automobile.
Minnie Henton was driving the automobile in the left lane, and at the same time an Atlanta Transit Company trolley, followed by a truck and a 1948 Dodge sedan automobile in that order, was in the right lane next to the curb. The Dodge automobile driven by the defendant was approximately thirty feet in front of the Ford, but in the adjacent lane of traffic.
All of the vehicles were travelling at around twenty-five miles per hour, and as the group of vehicles approached said intersection, the trolley stopped at a regular trolley stop to discharge passengers, and a truck behind the trolley, in the same line of traffic, also stopped. The defendant slowed his vehicle down, but the brakes failed to stop the Dodge automobile because they were not serviceable, and the defendant suddenly swerved the Dodge automobile to the left into the middle lane. Minnie Henton swerved the Ford to the left to avoid striking the Dodge automobile, and lost control of the Ford and ran into a telephone pole on the northeast corner of said intersection.
When the Ford automobile struck the telephone pole, the plaintiff sustained serious injuries, which resulted in her being unable to work since the date of said accident, and she has suffered great pain.
1. The defendant demurred generally to the petition on the ground that, from the facts and circumstances shown by the petition, it does not appear that the alleged negligence of the defendant was the proximate cause of the plaintiff's injuries.
Ordinarily questions of negligence, contributory negligence, and proximate cause are not matters of law to be determined by the court on demurrer. If the petition fails to set forth facts from which it appears that the defendant was negligent or that his negligence was the proximate cause of the plaintiff's injuries, the petition is subject to general demurrer. The facts alleged in the petition in the instant case, if proved, would support a finding that the defendant's negligence was the proximate cause of the plaintiff's injuries. The court did not error in overruling the general demurrer. Moore v. Shirley, 68 Ga. App. 38 ( 21 S.E.2d 925); Shepherd v. Amos, 75 Ga. App. 221 ( 42 S.E.2d 775); McDaniel v. Richards, 64 Ga. App. 612 ( 13 S.E.2d 710); Letton v. Kitchen, 166 Ga. 121 ( 142 S.E. 658).
2. The plaintiff alleged in paragraph 14 of the petition that she would suffer for the rest of her life from the injuries sustained by her. The defendant demurred on the ground that this statement constituted a conclusion of the pleader.
The allegation is not subject to the criticism that it is such a conclusion, for the reason that other averments relating to the nature and extent of the plaintiff's injuries furnished factual foundation for the assertion that the injuries were permanent.
We are aware that a non-expert witness is not usually permitted to testify to the probable duration of disability or pain that may result from an injury sustained by him. Atlanta Street Railroad Co. v. Walker, 93 Ga. 462 (2) ( 21 S.E. 48). But this rule of evidence has no application to the principles of pleadings.
Frequently, as in this case, that which may be pleaded cannot be proved by the pleader's testimony. Pleadings are confined within the scope of what can by competent evidence be proved: a witness's testimony is restricted to those facts concerning which he can be expected to possess reasonably accurate information.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.