Opinion
31649.
DECIDED SEPTEMBER 3, 1947.
Action for damages; from Sumter Superior Court — Judge Harper. May 13, 1947.
R. L. Maynard, Smith Undercofler, for plaintiff.
H. B. Williams, S. H. Dykes, for defendant.
The petition set forth a cause of action for simple negligence and for wilful misconduct and the court erred in sustaining the general demurrer.
DECIDED SEPTEMBER 3, 1947.
W. G. Crapps brought an action for damages against J. W. Mangham in the Superior Court of Sumter County to recover for alleged personal injuries, and alleged: that, on or about January 18, 1945, the plaintiff was engaged in painting a gasoline-filling station situated on the southwest corner of Lee and Church Streets in the City of Americus, Georgia; that he was painting the overhead canopy of the filling station which canopy covers an area between the office of the filling station and the gasoline pumps; that he was standing on a platform or scaffold supported by two ladders, such as is commonly used by painters, said scaffold extended from northeast to southwest between the gasoline pumps and the office of the filling station and underneath the canopy; that the scaffold was approximately six feet in height, and was plainly visible to any motorist or any other person approaching the filling station, regardless of the direction from which they approached; that on or about eleven o'clock of the morning of January 8, 1945, the defendant approached said filling station in his truck from a northerly direction on Church Street, and on entering the filling station stopped his truck facing Lee Street directly in front of the plaintiff and the plaintiff's scaffold; that the defendant got out of his truck and went into the office of said filling station; that a few minutes later the defendant returned to his truck, stopping momentarily to speak to the filling-station attendant concerning the plaintiff and his work, and speaking to the plaintiff in passing, re-entered his truck; that the defendant started his truck and instead of backing up and turning to avoid the plaintiff and the plaintiff's scaffold drove straight ahead, running into the scaffold and thereby throwing the plaintiff to the ground; that, as a result of being thrown from the scaffold, the plaintiff suffered certain enumerated injuries and incurred hospital, medical, and drug bills, in named amounts; that prior to the injuries the plaintiff was a well, strong and able-bodied man of fifty-two years of age; that, because of the injuries, the plaintiff was totally disabled for a period of twenty-nine and one-half weeks, and is now, and will continue to be partially disabled from following his vocation; that, because of the permanent disability, the plaintiff lost earnings in the amount of $845.50; that, because of the partial disability, the plaintiff's earning capacity has been reduced to half, and the plaintiff has a life expectancy of 18.97 years according to Carlisle's Mortality Tables; that the injury sustained by the plaintiff was without any fault or negligence on his part; that the plaintiff and the plaintiff's scaffold were plainly visible to the defendant at all times and the defendant, having seen them, in the exercise of reasonable care, should have backed out of said filling station or have driven around the plaintiff and the scaffold; that the injuries were directly and proximately caused by the defendant's gross negligence in failing to exercise even the slightest care and caution in driving around the plaintiff who was in clear view and known to the defendant to be directly in front of his truck; that the defendant wilfully drove his truck into the plaintiff who was in clear view; that this action was originally brought in the City Court of Americus on August 18, 1946, but was voluntarily dismissed and costs paid by the plaintiff on February 1, 1947; that the action set forth in this petition is between the same parties and upon the same cause as the suit dismissed, and is filed within the six months period allowed by statute (Code, § 3-808) for the reinstitution of suits so dismissed. The instant suit was filed in the office of the Clerk of the Superior Court of Sumter County on February 21, 1947.
The defendant filed general and special demurrers to the petition on the grounds that it was barred by the statute of limitations, and that the allegations of certain paragraphs were conclusions of the pleader. The court overruled the special demurrers and sustained the general demurrer, and the plaintiff excepted to the sustaining of the general demurrer.
Assuming the truth of the allegations of the petition as against demurrer, the petition set forth a cause of action, and the court erred in sustaining the general demurrers. It is alleged that the plaintiff and his scaffold were plainly visible to any motorist or any other person approaching the filling station from any direction; that the defendant drove his truck into the filling station, stopped his truck in front of the plaintiff and his scaffold, got out, went into the office of the filling station, returned a few minutes later, stopped momentarily to speak to a filling-station attendant of and concerning the plaintiff and his work, spoke to the plaintiff in passing, re-entered his truck, and instead of backing up and turning his truck so as to avoid striking the plaintiff and the scaffold, which was some six feet in height and consisted of a plank supported between two ladders, drove straight ahead, running into the scaffold and throwing the plaintiff to the ground, which the plaintiff alleged was gross negligence and wilfully done. The plaintiff further alleged that he was without any fault or negligence on his part.
"Although the negligence with which a defendant is charged may be characterized in the plaintiff's petition as wilful and wanton, if the specific facts alleged do not warrant such conclusion the rule of duty which merely requires the exercise of ordinary care and diligence is not affected thereby. . . The legal conclusions of the court are to be drawn from the statements of fact contained in the pleadings, unaffected by the conclusions of the pleader." Western Union Telegraph Co. v. Harris, 6 Ga. App. 260 ( 64 S.E. 1123); Central of Ga. Ry. Co. v. Moore, 5 Ga. App. 562 ( 63 S.E. 642); Standard Oil Co. v. Parrish, 40 Ga. App. 814 ( 151 S.E. 541). In the application of this rule we are firmly of the opinion that the petition set forth a cause of action. The plaintiff clearly had a right to occupy the position in which the defendant found him. He was not a trespasser in the fulfillment of his duty of painting the filling station. Under the allegations of the petition the defendant saw the plaintiff with his own eyes in his position atop the scaffold, which was located directly in front of and in the path of the defendant's truck, the defendant spoke to the plaintiff and was therefore consciously aware of his presence. Yet, the defendant returned to his truck and instead of turning aside to avoid striking the plaintiff's scaffold, he drove straight forward into it. Under such circumstances, the defendant will not be heard by this court to say that the plaintiff had negligently placed himself in a position of peril and had negligently failed to post signs, barriers, or other warning devices to indicate the plaintiff's presence in that position of peril. The defendant saw and spoke to the plaintiff in that position of peril and whether or not the plaintiff was negligent in those regards, the defendant was under the duty to exercise ordinary care not to injure him. "Even though a person's own acts may have placed him in a position of peril, yet if another acts or omits to act with knowledge of the peril, and injury results, the injured person is entitled to recover." 38 Am. Jur. 904, § 218. For a detailed discussion of the doctrine of last clear chance, see Lovett v. Sandersville R. Co., 72 Ga. App. 692 ( 34 S.E.2d 664) (certiorari denied), and cit. Whether or not the defendant was in the exercise of ordinary care in attempting to drive his truck under the plaintiff's scaffold, or whether or not he realized the plaintiff to be in a perilous position, even after speaking to him and seeing his position, are questions of fact exclusively for the jury.
We are cognizant of the rulings in Moore v. Seaboard Air-Line Ry. Co., 30 Ga. App. 466 ( 118 S.E. 471), upon which counsel for the defendant rely so strongly, and they are not applicable to the facts of this case. Under the facts of that case, the decedent discovered the defendant's negligence or in the exercise of ordinary care could have discovered it, and the use by the decedent of his senses of sight and hearing in an ordinarily diligent manner could have prevented the casualty from occurring. In this case, it would seem, under the allegations of the petition, that the converse is true. That, however, as we have said above, is a question of fact for the jury, and as was said in the sixth headnote of that case, "Every case of this character must stand largely upon its own facts."
The petition set forth a cause of action for simple negligence and the court erred in sustaining the general demurrer. Furthermore, there was no special demurrer to the petition on the ground that it was duplicitous; and under the facts of the petition a cause of action was set forth for wilful misconduct, and the plaintiff would be entitled to present his proof under either theory.
Judgment reversed. Sutton, C. J., and Parker, J., concur.