Opinion
41343.
SUBMITTED JUNE 8, 1965.
DECIDED JUNE 24, 1965. REHEARING JULY 13, 1965.
Action for damages. Cobb Superior Court. Before Judge Henderson.
Johnson Johnson, Jean E. Johnson, Jr., for plaintiff in error.
R. M. Reed, contra.
On general demurrer a petition must be construed in the light of its omissions as well as its averments.
(a) Where a petition alleges that the right side of the plaintiff's automobile was struck by an oncoming vehicle while the plaintiff was making a left turn, but fails to allege that the plaintiff waited until there was no oncoming traffic so near as to constitute an immediate hazard, and where there are no allegations as to why such oncoming vehicle was not observable to the plaintiff before he began making such left turn, the petition must be construed as alleging that the plaintiff failed to exercise ordinary care for his own safety by turning in front of the oncoming vehicle which was so near as to constitute an immediate hazard.
SUBMITTED JUNE 8, 1965 — DECIDED JUNE 24, 1965 — REHEARING JULY 13, 1965.
D. T. Hillhouse sued C. W. Matthews Contracting Company to recover for injuries and damages sustained when the plaintiff's automobile was struck by a truck owned by the defendant and being operated by its agent. The petition as finally amended alleged that the plaintiff was making a left turn from State Highway 5 into Blackwell Road in Cobb County, Georgia, when the defendant's truck (while traveling in the opposite direction), struck the right rear side panel of the plaintiff's automobile. The plaintiff alleged that he gave a left turn signal and began turning to the left after observing that the intersection was free from oncoming traffic, that he did not observe the defendant's truck until he was making his left turn and until he had reached the southeast corner of the intersection (he had been traveling in a southerly direction and was turning so as to travel in an easterly direction), that due to the close proximity of the vehicles he was unable to avoid the collision, that at the time of the collision the defendant's truck was being operated at an excessive rate of speed which was greater than was reasonable and safe under the conditions and having due regard to the actual hazards then existing, that such truck was being operated without keeping a proper lookout ahead, that the defendant failed to yield the right of way to the plaintiff who had pre-entered the intersection in violation of Code Ann. § 68-1651, and that the defendant's vehicle was not under immediate control. The trial court sustained the defendant's demurrers to the plaintiff's petition as amended and dismissed the petition. It is to such adverse judgment that the plaintiff now excepts.
"It is a well settled rule that pleadings must be construed in the light of their omissions as well as their averments. Houston v. Pollard, 217 Ga. 184 ( 121 S.E.2d 629); Strother v. Kennedy, 218 Ga. 180, 186 ( 127 S.E.2d 19)." Reserve Ins. Co. v. Campbell, 107 Ga. App. 311, 313 ( 130 S.E.2d 236). And if an inference unfavorable to the right of the party claiming a right under such pleadings may be fairly drawn from the facts stated therein, such inference will prevail in determining the rights of the parties. See Chalverus v. Wilson Mfg. Co., 212 Ga. 612 (1) ( 94 S.E.2d 736), and citations.
The plaintiff alleged that he gave a turn signal and proceeded to make a left turn at a time when the intersection was clear of oncoming traffic "so close thereto as to constitute an immediate hazard," as required by Code Ann. § 68-1651, before the plaintiff would obtain the right of way in such intersection. Nor did the allegation that the plaintiff observed the defendant's truck after he had reached the southeast corner of such intersection show such oncoming traffic was not an immediate hazard at the time the plaintiff began to make his left turn, there being no facts alleged as to why the defendant's truck was not visible to the plaintiff.
Therefore, construing the petition in the light of its averments as well as its omissions, under Code § 105-603, the plaintiff, by the exercise of ordinary care, could have avoided the consequences of the defendant's negligence by waiting until oncoming traffic was not so close as to constitute an immediate hazard, and the allegations of negligence all being allegations of acts observable to the plaintiff if he had looked, and based, either directly or indirectly, on the excessive speed of the defendant's agent, failed to set forth a cause of action against the defendant, and the judgment of the trial court sustaining the defendant's general demurrer was not error for any reason assigned. Judgment affirmed. Eberhardt, J., concurs. Pannell, J., concurs, specially.
I cannot agree that the failure on the part of the plaintiff to allege the existence of all the requirements of Art. IX, § 73 of the Act of 1953 approved January 11, 1954 (Ga. L. 1953, Nov. Sess., pp. 556, 590; Code Ann. § 68-1651), necessary to entitle plaintiff to the right of way when making a left turn at an intersection, precludes a recovery as a matter of law under the facts of the present case. I agree, however, that the failure of the plaintiff to look for oncoming traffic before making a left turn at the intersection does bar his recovery, and for this latter reason only I concur in the judgment affirming the trial judge in sustaining the general demurrer to the petition.