Opinion
31180.
DECIDED APRIL 25, 1946.
Action for damages; from Millen city court — Judge Strickland. December 28, 1945.
W. G. Neville, D. A. Bragg, for plaintiff.
Price Spivey, Milton A. Carlton, for defendants.
The court erred in sustaining the general demurrer to the petition, for the reasons given in the opinion.
DECIDED APRIL 25, 1946.
Mildred Lanier brought a suit for damages against Nip Turner and T. W. Aaron. The material portions of the petition are: "2. That on February 3, 1945, the defendant, Nip Turner, was in the possession, custody, and control of and was at the time, operating a certain automobile truck, belonging to the defendant, T. W. Aaron, and for the latter and in connection with the business of the said T. W. Aaron.
"3. That, at about the hour of 8:30 in the evening on said date, the plaintiff, with her parents. Mr. and Mrs. B. S. Lanier, and her sister. Mrs. Leham Stubbs, was proceeding along route 25, from Millen, Georgia, towards Statesboro, Georgia, in plaintiff's automobile, to wit, a 1937 model Plymouth, when at a point along said highway near the ginnery of Mrs. Kate Newton, in said county, she ran upon, into and against the said automobile truck, driven by the said Nip Turner, as aforesaid; and which said truck was at the time parked on the right-hand side of said highway, on the pavement, in the direct line of traffic going toward Statesboro, in darkness, without lights, or warnings, or flares, or anything to put approaching traffic on notice that said truck was so parked and thereby obstructing the said highway; and that there was no effort made nor nothing done by the said driver, nor any one else, to warn nor give notice to the plaintiff, as she approached said parked truck, of its presence on said highway.
"4. That said truck was then loaded with a two-horse wagon, with tongue attached and which said tongue extended out beyond the body of said truck, backward over said highway toward Millen and in the direction of approach of plaintiff; and it was then and there without light, signal, flare, or anything to give warning of its protruding presence, and which said tongue, together with the truck in which it was being hauled, was run into and against by plaintiff and her said automobile; and that plaintiff was so near to said truck and to the end of said wagon tongue before she discovered their presence, although she was then exercising every precaution to insure safe driving, that she could not stop her car before hitting said tongue and truck; and plaintiff could not at the time safely undertake to go around said parked truck to the left, because of the approach and passing of an automobile going toward Millen; and that said wagon tongue crashed into her car, and which, together with the impact with said truck did cause the personal injuries and property damage hereinafter alleged.
"5. That plaintiff was injured, and suffered the consequences thereof, as a result of said collision as follows: a severe cut on forehead, beginning over the middle of the right eyelid and extending over nose, about two inches, in a curve upward over left eye, five or six lacerations of the right hand and arm, lacerations on lower part of chin; right shoulder broken in joint, or approximately therein; and which said injuries are permanent, and from which plaintiff suffered severe shock and physical pain; and from which plaintiff still suffers severe pains and physical discomforts; and mental anguish because of the unsightly scars on plaintiff's face, resulting from said injuries, and which mar her physical appearance and which will permanently disfigure plaintiff in her physical appearance; and which will continue to cause her mental discomfort and unrest throughout her life, she being now a young woman with prospects of long life.
"7. That at the time of the collision of the plaintiff's car with defendant's truck, the plaintiff was exercising all caution for her own safety, and that of those riding with her by driving to the right of the center of said highway, at a reasonable speed, consistent with the safety of human life and property, with her automobile properly lighted both on the front and rear; and the plaintiff could not have avoided the collision, injury, and damage to her and her car by the exercise of ordinary care and caution; and the plaintiff affirmatively alleges that she was at the time of said wreck exercising all proper and necessary caution in proceeding along said highway at the time said injuries occurred."
Paragraph 6 of the petition alleged certain injuries which the plaintiff received by the alleged negligence of the defendants. Paragraphs 8 and 9 alleged specific damage to the plaintiff's automobile, and physical injuries to her, and certain expenses incidental thereto. Paragraph 10 alleged that the injuries and damages were the direct and approximate result of the negligence of the defendants and were specifically as follows: "(1) By parking said truck on the highway, in the night time, without lights, flares, or other sufficient signals to put approaching traffic on notice of its presence on said highway.
"(2) By parking said truck on said highway in violation of the laws of the State of Georgia, governing and controlling the parking of motor vehicles on highways and which forbid such parking of said vehicles.
"(3) By failing to give any signal, or warning of the presence on said highway of said truck, by the blowing of horns or sounding of gongs.
"(4) By so operating said truck as to show an utter disregard for the safety of person and property.
"(5) By failing to remove from said wagon the tongue so that the same would not extend out and beyond the body of said truck and over the highway, backward in the direction of approaching traffic from the rear; and by failing to attach to the end of said wagon tongue a light or other signal sufficient to warn approaching traffic of its presence on said highways."
The defendants demurred generally and specially, to the effect, (1) that the petition set forth no cause of action, and (2) that the damage to the plaintiff's automobile was not specifically stated. In response to the special demurrer, the plaintiff set forth a bill of particulars relative to the damage to her car. The trial judge allowed this amendment. He then passed an order sustaining the general demurrer and dismissed the petition. The plaintiff excepted to this judgment and brings the case here for review.
The only question before us is, whether or not the petition as amended set forth a cause of action. The petition in effect alleged that the defendants, at night, parked a truck without lights on the highway. Also, that there were no flares or warnings of any kind to put users of the highway on notice as to the parked truck which had on it a two-horse wagon with tongue attached thereto and protruding beyond the length of the truck. The petition further alleged that, while the plaintiff was exercising all due diligence in the operation of her car, she ran into the protruding wagon tongue and truck, practically demolishing her car and inflicting upon her extensive bodily injuries. It was further alleged that, as she approached the truck and discovered its presence, she could not safely undertake to turn to the left and avoid it because of another automobile, which was at the time approaching from the opposite direction toward the truck.
It is the established law of our State that questions of diligence and negligence, involving comparative negligence and what negligence constitutes the proximate cause of an alleged injury, are peculiarly for the determination of the jury, and this court will not solve such questions on demurrer except in palpably clear, plain, and undisputable cases. Southern Ry. Co. v. Slaton, 41 Ga. App. 759 ( 154 S.E. 718). This court said in Sumner v. Thomas, 72 Ga. App. 351, 369 ( 33 S.E.2d 825) : "The fundamental law of this State underlying all acts of negligence of this sort is set forth in the Code, § 105-603, as follows: `If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover.' This court said in Georgia Power Company v. Maxwell, 52 Ga. App. 430 (3) ( 183 S.E. 654): `The rule of law that in order for the plaintiff to recover he must have exercised ordinary care to avoid the consequences to himself of the defendant's negligence is not limited to negligence which may have been actually discovered, but it extends to negligence which might have been discovered by exercise of ordinary care by the plaintiff.'" We think that this statement in the Sumner case is the law governing such cases as the instant one. The defendants in error cite this principle of law and contend that — since the plaintiff alleged in her petition that she was in the exercise of due care in the operation of her automobile while her automobile was equipped with lights required by the law, and sufficient brakes — construing her petition most strongly against her, she could, if in the exercise of ordinary care, have avoided the negligence of the defendants; and that on this theory she is not entitled to recover. The facts as they appear in the Sumner case and the allegations of fact in the instant case have practically no similarity. It will be observed in the instant case that the parked truck was equipped with no lights, no flares or warnings of any kind; and it further appears from the allegations of this petition that a motor vehicle was approaching going in the opposite direction from that of the plaintiff. It is true that there is no allegation that the plaintiff was blinded by the lights of the approaching motor vehicle; but it is common knowledge that people who drive on the highway at night can not at all times direct their vision straight ahead to the full extent of the rays of the headlights. Attention must also be given to the size of the lane in which the driver is approaching the car. It is our opinion that the allegations of this petition present a question of fact for a jury sufficient to withstand a general demurrer. We think that it is a jury question, under all the facts and circumstances of this case, and under proper instructions of the court, as to whether the plaintiff by the use of ordinary care could have avoided the consequences to herself caused by the defendants' negligence. This principle is set forth in the Code, § 105-603. But there is also another principle set forth in this section, and that is, "in other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained." This last principle is the doctrine of comparative negligence, wherein the jury would have the right to apportion the damages in the event they should determine under all the facts that the defendants were more negligent than the plaintiff, and to refuse a verdict for the plaintiff in the event they should find that the negligence of the plaintiff was equal to or greater than that of the defendants. See, in this connection, Crawford v. Western Atlantic Railroad, 51 Ga. App. 150 ( 179 S.E. 852); Western Atlantic R. Co. v. Ferguson, 113 Ga. 708 ( 39 S.E. 306, 54 L.R.A. 802). The allegations of fact in this petition do not show such lack of due care on the part of the plaintiff, which lack is so palpably clear, plain, and undisputed that it should be solved by the court on demurrer.
The defendants, in addition to the Sumner case, rely for an affirmance of the judgment on the following cases: Love v. Payne, 156 Ga. 312 ( 118 S.E. 924); Athens Ry. c. Co. v. McKinney, 16 Ga. App. 741 ( 86 S.E. 83); Moore v. Seaboard Air Line Ry. Co., 30 Ga. App. 467 (8) ( 118 S.E. 471); Davis v. Whitcomb, 30 Ga. App. 497 ( 118 S.E. 488); Haddon v. Savannah Elec. c. Co., 36 Ga. App. 183 ( 136 S.E. 285); Georgia Power Co. v. Maxwell, 52 Ga. App. 430 (3) ( 183 S.E. 654); Taylor v. Morgan, 54 Ga. App. 426 (2, 3) ( 188 S.E. 44); Whatley v. Henry, 65 Ga. App. 668 ( 16 S.E.2d 214). Those decisions, under their peculiar facts, are not in conflict with what we have decided in the instant case under its peculiar facts.
We think that the court erred in sustaining the general demurrer.
Judgment reversed. Broyles, C. J., and MacIntyre, J., concur.