The allegations of the petition, when construed most strongly against the pleader, do not affirmatively show that the plaintiff was guilty of such contributory negligence as to be barred of a recovery, and the trial court did not err in refusing to dismiss the petition on general demurrer.

( a) The special grounds of demurrer directed to the allegations of negligence on the ground that they constituted conclusions of the pleader were not meritorious.

DECIDED MAY 13, 1958 — REHEARING DENIED JUNE 24, 1958.

Bell Transportation Company sued Atlanta Newspapers, Inc., and Millard H. Jones for damages. The petition, as redrafted, alleged that on or about July 23, 1957, the plaintiff, as a carrier, was transporting a radar dome manufactured for the United States Government and to be delivered in the State of Florida; that the radar dome required a special permit in order to be transported over the highways of the State of Georgia; that the plaintiff had obtained the permit and pursuant to the permit had obtained a special State highway patrol escort to guide its truck through the State with the said radar dome which was loaded on a motor vehicle operated by plaintiff; that the route over which this radar dome was being transported was U.S. Highway No. 341, and that at approximately 11 o'clock a. m. on the aforesaid date, the plaintiff's vehicle transporting the said radar dome was proceeding in a generally southerly direction toward the State of Florida and had reached a point approximately four miles north of Culloden, Georgia; that at that time and at all times prior thereto, the plaintiff's vehicle was preceded by the special State highway patrol escort which was immediately in front of the plaintiff's vehicle and was giving a signal by a red flashing light; that at that time and place, the truck belonging to Atlanta Newspapers, Inc., and being operated by Jones, was proceeding in a generally northerly direction at approximately 50 miles per hour and was meeting the plaintiff's vehicle and its escort; that at said time and place, it was raining and the highway was wet; that the defendant Jones failed to heed the warning given by the State highway patrol escort and collided with the radar dome inflicting the damages sued for. It was alleged that Jones was at the time operating the vehicle within the course of and within the scope of his employment with the defendant Atlanta Newspapers, Inc., and it was alleged that he was negligent in operating the vehicle at a speed which was unreasonable and unsafe having due regard for the existing circumstances including the wet condition of the road and the occupancy of the road by the plaintiff's vehicle, and that this was negligence per se; that the defendant was negligent in failing to have its vehicle under control at all times and in failing to heed the warning signal of the State highway patrol escort and thus avoid colliding with the radar dome; in failing to maintain a proper lookout for vehicles occupying the highway; and, in failing to bring his vehicle to a stop prior to colliding with the same and in colliding with and damaging the plaintiff in the manner and to the extent alleged. It was alleged that the plaintiff's damages resulted directly and proximately from the alleged acts of negligence of the defendant.

The defendant filed a general demurrer to the petition and demurred specially to the allegations respecting the negligence of the defendant driver on the ground that said allegations constituted conclusions of the pleader unsupported by any facts to sustain the same. The trial court overruled all of the demurrers and the exception here is to that judgment.

CARLISLE, Judge.

No rule is more firmly established in this jurisdiction than the rule that questions respecting negligence and diligence, including contributory negligence, and questions with relation to causation and whose negligence was the proximate cause of an injury, are questions peculiarly for the jury and the courts will decline to solve them by decision on demurrer except in plain, palpable and indisputable cases. A. W. P. R. Co. v. McDonald, 88 Ga. App. 515, 519 ( 76 S.E.2d 825). The plaintiff in this case has alleged certain respects and alleged that the defendant was negligent in certain respects and that it has suffered injury and damage as the proximate result of the defendant's actions. In effect, the defendant's contention on demurrer is that the plaintiff's petition when construed most strongly against the pleader shows that the plaintiff was guilty of such contributory negligence that it is barred from recovery. The defendant contends that, since the plaintiff does not allege where upon the highway with respect to the center line thereof the collision occurred, construed most strongly against the plaintiff, the petition must be construed as alleging that the plaintiff's vehicle was on the plaintiff's left-hand side of the road. This argument is not sound. In the first place, the plaintiff is not required to negative its own negligence ( Fisher Motor Car Co. v. Seymour Allen, 9 Ga. App. 465 (1), 71 S.E. 764), and, under the general rule first above stated, where it does not affirmatively appear from the petition that the plaintiff was guilty of such negligence as to be barred from a recovery, the petition will not be so construed. Grant v. Smart, 82 Ga. App. 80 ( 60 S.E.2d 379). If the plaintiff's vehicle was, in fact, on the left-hand side of the road, and if it went onto the left side of the road immediately in front of the defendant's vehicle and so as to create an emergency, this would be a defensive matter which the defendant could inject into the case by proper pleading. See Salmon v. Rogers, 40 Ga. App. 73, 77 ( 149 S.E. 52).

The petition set forth a cause of action, and none of the grounds of special demurrer were meritorious, and the trial court did not err in overruling all of the demurrers and in refusing to dismiss the petition.

Judgment affirmed. Gardner, P. J., and Townsend, J., concur.