The facts pleaded in the plaintiff's petition against Charles S. Conklin, Jr., who was the driver of the car in which the plaintiff was riding when she received her injuries, fails to set forth facts from which a jury could find that he was guilty of gross negligence in the operation of his automobile.

DECIDED MAY 7, 1957.

Patricia Jones, a minor, filed a petition through her next friend, Herman S. Jones, Jr., in Fulton Superior Court, jointly against Roadway Express, Inc., and against Charles S. Conklin, Jr., the plaintiff in error. She alleged that she had been injured in an automobile collision and that the defendants Roadway Express, Inc., and Charles S. Conklin, Jr., were jointly negligent and that their negligence caused her to receive personal injuries.

Roadway Express, Inc., filed an answer but did not file a demurrer to the petition. Charles S. Conklin, Jr., who was the driver of the car in which the plaintiff was riding, filed both general and special demurrers to the petition.

These demurrers were all overruled by the trial judge and the case then brought to this court for a review of that judgment. Since the case is now before this court on the pleadings, the material portions of the plaintiff's petition are herewith set forth:

"1. The defendants herein are Roadway Express, Inc., and Charles S. Conklin, Jr., a minor. Defendant Roadway Express, Inc., is a foreign corporation with an agent for service in said State and county, namely, D. F. McClatchey, whose address is Hurt Building, Atlanta, Georgia. Defendant Charles S. Conklin, Jr., is a resident of this county and may be served at 2644 Dellwood Drive, N.W.

"2. That defendants have jointly injured and damaged your petitioner in the sum of $150,000 by reason of facts hereinafter set forth.

"3. That at all times mentioned herein Northside Drive was a public street in the City of Atlanta running approximately north and south and is heavily traveled by vehicles both day and night.

"4. That said Northside Drive is intersected by Peachtree Battle Avenue, another public street in the City of Atlanta, and that said intersection is controlled by a traffic light.

"5. That at all times mentioned herein defendant Roadway Express, Inc., owned and operated a large tractor-trailer truck and the same was being driven by its servant and employee, Billy Frank Knight, in and about the business of his master, Roadway Express, Inc.

"6. That at all times mentioned herein defendant Charles S. Conklin was the driver of a 1953 model Ford automobile.

"7. That at all times mentioned herein defendant's said automobile was being operated by Charles Conklin, with the permission of the owner of said automobile, Southern Financial Service, Inc., by and through its President, Charles A. Conklin.

"8. That on the night of August 4, 1956, at approximately 11 p. m., plaintiff was riding as a guest in defendant's automobile and was seated to the right of the driver, and said automobile was proceeding west on Peachtree Battle Avenue approaching the intersection of that street and Northside Drive.

"9. That plaintiff was an invited guest and had no control over the operation or movements of said automobile.

"10. That on or about the time and place in question, Billy Frank Knight was driving defendant's tractor-trailer in a southerly direction on Northside Drive at approximately 25 miles per hour and approaching the intersection of that street and Peachtree Battle Avenue.

"11. That as defendant Roadway Express's driver approached said intersection he was following another large truck and was picking up speed in the process of passing the same when the complained of collision took place.

"12. That when defendant Roadway Express's driver was approximately 50 feet north of said intersection, said driver cut his said tractor-trailer to the left of the center line of Northside Drive in order to pass the truck in front of him.

"13. That as the automobile in which plaintiff was riding approached the aforesaid intersection, the traffic light turned green and the driver of said automobile turned to the right into Northside Drive and proceeded in a northerly direction.

"14. That at the time defendant Conklin entered said intersection and turned his car to the right on Northside Drive, he was running at the rapid and reckless rate of speed of 30 to 35 miles per hour.

"15. That when said defendant Roadway Express's truck cut over to the left of center line in the direction for which said truck was headed, defendant Conklin applied the brakes to the automobile but nevertheless a collision ensued and the left-hand side of the tractor-trailer and the left front side of the automobile collided with terrific force and impact."

(The allegations of paragraphs 16, 17, and 18 of plaintiff's petition relate to the injuries received and they are omitted as being immaterial in the consideration of the defendant's demurrers.)

"19. That at all times mentioned herein the following was a valid and existing city ordinance of the City of Atlanta: `30.37 — Drivers of vehicles proceeding in opposite directions shall pass each other to the right, and upon roadways having width for not more than one line of traffic in each direction, each driver shall give to the other at least one-half of the main travelled portion of the roadway as nearly as possible.'

"20. That defendant Roadway Express, Inc., by and through its agent and servant, Billy Frank Knight, was negligent in the following manner:

"(a) In driving its said tractor-trailer to the left side of the center of the roadway when approaching within 100 feet of the intersection of Northside Drive at Peachtree Battle Avenue in violation of State law, the same being negligence per se.

"(b) In driving the said tractor-trailer to the left side of the center of the roadway in overtaking and passing another vehicle proceeding in the same direction when the left side of said roadway was not free of on-coming traffic for a sufficient distance ahead for such overtaking and passing to be made without interfering with the safe operation of the vehicle approaching from the opposite direction in which plaintiff was riding, in violation of State law, the same being negligence per se.

"(c) In failing to return to the righthand side of the roadway before coming within 100 feet of the vehicle approaching from the opposite direction in which plaintiff was riding in violation of State law, the same being negligence per se.

"(d) In failing to cut his said tractor-trailer to the right so as to avoid striking the car in which plaintiff was riding.

"(e) In failing to apply the brakes on said tractor-trailer so as to stop the same before it collided with the automobile in which plaintiff was riding.

"(f) In attempting to pass another vehicle at the intersection mentioned aforesaid and in the manner set forth as aforesaid.

"(g) In driving said tractor-trailer at a speed greater than was reasonable and prudent under the conditions herebefore mentioned and having no regard to the actual potential hazards then existing under the circumstances as aforesaid.

"(h) In failing to so control the speed of said vehicle so as to avoid colliding with the automobile in which petitioner was riding in compliance with legal requirements and the duty of all persons to use due care.

"(i) In failing to drive the said tractor-trailer at an appropriately reduced speed as he approached the aforesaid intersection in violation of State law, the same being negligence per se.

"(j) In failing to drive the said truck so as to give defendant Conklin at least one-half of the main traveled portion of the roadway as nearly as possible, in violation of city ordinance, the same being negligence per se.

"21. Defendant Charles Conklin was grossly negligent in the following particulars:

"(a) In entering Northside Drive from Peachtree Battle Avenue at the rapid and reckless rate of speed of 30 to 35 miles per hour.

"(b) In failing to turn his automobile to the right so as to avoid colliding with the tractor-trailer of defendant Roadway Express.

"(c) In failing to apply the brakes on said automobile in sufficient time to stop the same before it collided with the tractor-trailer of defendant Roadway Express.

"(d) In failing to drive at an appropriately reduced speed when approaching the aforesaid intersection in violation of State law, the same being negligence per se.

"22. That all the above and foregoing acts of negligence of both defendants combined and cooperated and proximately caused the injuries and damage sustained by plaintiff."

To this petition Charles S. Conklin, Jr., filed his demurrers consisting of five grounds. The first ground was a general demurrer. The remaining grounds were special demurrers directed to paragraphs 13, 14 and 21.

CARLISLE, J.

The plaintiff charged the driver of the Roadway Express truck with some ten acts of negligence, all as set forth in paragraph 20 of her petition. The acts of negligence charged against the defendant Conklin in paragraph 21 of her petition are not sufficient to charge gross negligence against the defendant Conklin, as one of her grounds of negligence is that the defendant Conklin failed to apply the brakes on said automobile in sufficient time to stop the same before it collided with the tractor-trailer of the defendant Roadway Express, and, yet, in paragraph 15 of her allegations against the defendant Roadway Express, she charged that "the defendant Roadway Express truck cut over to the left of the center line in the direction from which said truck was headed. Defendant Conklin applied the brakes to the automobile, but, nevertheless, a collision ensued and the left-hand side of the tractor-trailer and the left front side of the automobile collided with terrific force and impact." Therefore, paragraph 15, construed with the rest of the plaintiff's petition against the Roadway Express truck, clearly shows that the defendant Conklin applied his brakes as soon as he possibly could after the Roadway Express truck suddenly pulled in front of him on a two-lane highway. This ground of negligence, as alleged in paragraph 21 against the defendant Conklin, certainly does not allege facts sufficient to show that Conklin was guilty of gross negligence.

The plaintiff's allegation in subparagraph (a) of paragraph 21 was that the defendant Conklin entered Northside Drive from Peachtree Battle Avenue at the rapid and reckless rate of speed of 30 to 35 miles per hour, but it fails to state any facts on which she claims that that rate of speed would be negligence and gave no facts whatever in connection with the the allegation of the speed to show that same was gross negligence. The collision itself occurred north of the intersection, and, therefore, the speed at which he entered the intersection before the collision occurred north of the intersection, is certainly not sufficient to show that the defendant Conklin was guilty of gross negligence which contributed in any way to the collision.

The plaintiff also charges that the defendant Conklin was grossly negligent in failing to turn his automobile to the right so as to avoid colliding with the tractor-trailer of defendant Roadway Express without pleading any facts showing that he could have turned to the right, as the plaintiff had already alleged that it was a two-way roadway and that the tractor-trailer of defendant Roadway Express in passing another truck suddenly turned into the left-hand side of the two-lane highway proceeding south and that the defendant was proceeding north. Therefore, the allegations simply stated that he failed to turn to the right when all the pleaded facts show that he would have had to run off the highway if he had turned to the right, and there are no allegations showing that he could have turned off the highway to the right as the allegations failed to show whether the right-of-way to the right of the traveled portion of the highway was in such condition that he could have turned to the right if he had had time. Therefore, that allegation is certainly not sufficient to show gross negligence of the defendant Conklin.

Construing the pleadings most strongly against the plaintiff, which it is the duty of the court to do when considering a case on general demurrer, it clearly shows from the petition as a whole, both against the Roadway Express and the defendant Conklin, that the sole and proximate cause of the collision was the negligence of the driver of the tractor-trailer of the defendant Roadway Express by suddenly at a speed of at least 25 miles per hour cutting into the roadway across the center line and in front of the car which Conklin was driving and in which the plaintiff was a passenger.

The pleaded facts in the plaintiff's petition clearly show that the defendant Conklin was not guilty of gross negligence, and, consequently, the judge committed error in overruling Conklin's demurrer.

It is true that questions of negligence and diligence, even of gross negligence and slight diligence, usually are matters to be determined by the jury except in plain and indisputable cases in which the court may solve the question as a matter of law. There could be many decisions cited in regard to the different phases of this case, but the facts in each case must be decided and construed in accordance with the allegations of the particular case then before the court. The pleading in this case failed to allege any facts which show that the defendant Conklin was guilty of gross negligence. While the facts in the cases hereinafter cited are somewhat different from the present case, nevertheless, they are cited on the theory that when the petition fails to set forth facts sufficient to show gross negligence the court should so decide as a matter of law. We cite Peavy v. Peavy, 36 Ga. App. 202 ( 136 S.E. 96); Luxenburg v. Aycock, 41 Ga. App. 722 ( 154 S.E. 460); Young v. Truitt, 93 Ga. App. 143 ( 91 S.E.2d 115).

The trial court erred in overruling the general demurrer of the defendant Conklin.

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