Opinion
34561.
DECIDED MAY 13, 1953. REHEARING DENIED MAY 27, 1953.
Action for damages. Before Judge Moore. Fulton Superior Court. January 28, 1953.
John M. Slaton, J. Hugh Rogers, for plaintiffs in error.
Hewlett, Dennis, Bowden Barton, Sam D. Hewlett, Jr., Douglas Dennis, contra.
The petition of a minor child, alleging that he was injured when thrown to the ground by the impact of a head-on collision between the automobile on which he was riding and the defendants' automobile, set forth a cause of action, based on the defendant's alleged negligence in passing a parked automobile upon a public highway, and the court did not err in overruling the general and special demurrers to the petition.
DECIDED MAY 13, 1953 — REHEARING DENIED MAY 27, 1953.
James Pilgrim, Jr., by his father as next friend, brought this suit against Allen Hodges and Carolyn Hodges, for damages on account of personal injuries. The plaintiff alleged that, on July 14, 1951, he was sitting on the left front fender of an automobile being driven south on Childers Drive by R. V. Harmon. Childers Drive is a public highway in Fulton County and is 20 feet wide. The plaintiff was then 15 years of age. An automobile was parked against the curb on the east side of Childers Drive. As the car on which the plaintiff was riding approached this parked automobile at 10 miles per hour and reached a point approximately opposite the front of the parked automobile, the defendant Carolyn Hodges, who was driving a car in the opposite direction (north) on Childers Drive at 30 miles per hour, proceeded to pass the parked automobile on the west side and drove her automobile west of the center line of Childers Drive and onto her left side of the highway. When Harmon saw the defendant attempt to pass the parked automobile, he turned to the right and applied his brakes, but the left front fender of the defendant's car struck the left front fender of Harmon's car, and the impact of the collision caused the plaintiff to be thrown to the pavement and injured.
It was further alleged that the defendant had a clear and unobstructed view of Harmon's car for 300 feet as she proceeded north on Childers Drive, and that she saw Harmon's car for a distance of 300 feet before the impact of the collision. Allen Hodges, the husband of Carolyn Hodges, was alleged to have furnished and maintained, for her benefit and convenience, the automobile driven by his wife as a family car, with his permission, and he was made a defendant to the suit.
It was alleged in paragraph 16 that Harmon's car was proceeding on the right side of the road, in compliance with the law of Georgia, and that the defendant failed to grant the right of way to Harmon's vehicle as it approached along said road; and, in paragraph 17, that the defendant failed to warm Harmon of her approach by horn or otherwise, or to slow her vehicle or stop it before passing the parked automobile; and, in paragraph 19, that the defendant was attempting to pass the parked automobile when the way ahead was not clear of approaching traffic and when the width of the road was insufficient to allow her car to pass the parked automobile and at the same time to keep to the right of the center of the highway, which was in violation of the laws of Georgia; and, in paragraph 20, that the defendant was negligent, (a) in suddenly driving from behind the parked automobile over and onto the left side of the highway and into the car on which the plaintiff was riding; (b) in failing to warn the plaintiff or Harmon of her intention to pass the parked automobile; (c) in attempting to pass the parked automobile when the way ahead was not clear of approaching traffic, and when the width of the road was insufficient to allow her automobile to pass the parked automobile and at the same time keep to the right of the center of the highway, which was negligence per se; and (d) in failing to keep to the right of the center of the highway so as to allow the automobile on which the plaintiff was riding to pass without interference, which was negligence per se.
The defendants filed a general demurrer to the petition on the ground that it set forth no cause of action, and demurred specially to paragraph 16, on the ground that yielding of the right of way applies only at highway intersections, and that it is not alleged that the collision was at an intersection; and to paragraph 17, on the ground that there was no allegation that it was necessary for Carolyn Hodges to warn the plaintiff of her approach or to stop before passing the parked automobile, as the petition shows that Harmon was able to see the defendant unless his view was cut off by the presence of the plaintiff on the front of his car; and to paragraph 19, on the ground that the petition shows that Harmon's car was 300 feet away, and that the way ahead was clear of approaching traffic, and also on the ground that, under the facts alleged, no violation of law was set forth; and to subparagraph (a) of paragraph 20, on the ground that it was contradictory of the allegations of the petition; and to subparagraph (b) of paragraph 20, on the ground that a warning was unnecessary, because it is not alleged that the plaintiff did not see the defendant's automobile, or that he needed any warning, or that such warning would have prevented the collision; and to subparagraph (c) of paragraph 20, on the ground that the allegations show that the way ahead was clear of approaching traffic, and so that there was no violation of law amounting to negligence per se; and to subparagraph (d) of paragraph 20, on the ground that there was no reason for the defendant to keep to the right of the center of the highway, as the plaintiff's automobile was 300 feet away, and so no law was violated by the defendant.
The court overruled the general and special demurrers, and the defendants excepted.
1. Code § 68-303 (c) requires the operator of an automobile meeting another vehicle coming from the opposite direction on the same highway to turn to the right of the center on the highway, so as to pass without interference. The petition shows that the defendant was proceeding north on Childers Drive, a public highway, at 30 miles per hour; that Harmon's car was moving south at 10 miles per hour; and that the automobiles collided near the front of the parked automobile, while the defendants' car was to the left of the center of said highway and on Harmon's side of the road. This was a violation of Code § 68-303 (c) and was negligence per se; and the court did not err in overruling the demurrers to paragraph 16 and to subparagraph (d) of paragraph 20 of the petition.
2. Code § 68-303 (d) provides: "An operator of a vehicle overtaking another vehicle going in the same direction, and desiring to pass the same, shall pass to the left of the vehicle overtaken: Provided, that the way ahead is clear of approaching traffic, but if the way is not clear he shall not pass unless the width of the roadway is sufficient to allow his vehicle to pass to the right of the center thereof in the direction in which his vehicle is moving." The petition alleges that the view of both drivers of each other was unobstructed for a distance of 300 feet, but it also shows that the way ahead was not clear for the defendant to pass the parked automobile, and that the width of the roadway was insufficient to allow her to pass to the right of the center thereof, in meeting Harmon's automobile and in passing the parked automobile; and the defendant was alleged to have been negligent as a matter of law in undertaking to pass in this situation. See Williams Bros. Lumber Co. v. Meisel, 85 Ga. App. 72, 76 (5-a) ( 68 S.E.2d 384); Morgan v. Brown 71 Ga. App. 401, 403 (4) ( 31 S.E.2d 208); Roberts v. Phillips, 35 Ga. App. 743 (1) ( 134 S.E. 837). The court did not err in overruling the demurrers to paragraph 19 and to subparagraph (c) of paragraph 20 of the petition.
3. The petition also alleges negligence on the part of the defendant in failing to give warning, and to slow or to stop her automobile before attempting to go around the parked automobile. It would be a matter for a jury to determine, under the evidence, whether or not the defendant's way ahead was clear, whether her giving some warning would have prevented the collision, whether the view of the two approaching drivers was unobstructed, and whether or not the defendant was in the exercise or ordinary care in failing to give warning and in failing to slow or to stop before passing the parked automobile. Whatley v. Henry, 65 Ga. App. 668 (1) ( 16 S.E.2d 214). We find nothing in the petition contradictory to the allegation that the defendant suddenly drove onto the left side of the highway and into the car on which the plaintiff was riding. The court did not err in overruling the demurrers to paragraph 17 and to subparagraphs (a) and (b) of paragraph 20 of the petition.
4. In the present case, where the petition shows that the defendant Carolyn Hodges was negligent as a matter of law in certain respects, and where it is alleged that the plaintiff, a 15- year-old boy, was riding on the left front fender of a car, and that the impact of the collision with the defendants' car threw the plaintiff to the pavement thereby injuring him, the petition set out a cause of action good as against the general and special demurrers. See, in this connection, Smith v. American Oil Co., 77 Ga. App. 463 (2b) ( 49 S.E.2d 90); Atlantic Ice Coal Co. v. Folds, 47 Ga. App. 832 ( 171 S.E. 581); Lassiter v. Poss, 85 Ga. App. 785 ( 70 S.E.2d 411). The case of Taylor v. Morgan, 54 Ga. App. 426 ( 188 S.E. 44), cited and relied upon by the plaintiff in error, is distinguishable on its facts from the present case. There the plaintiff's deceased husband, a man of 29 years, was standing on the running board of a car which was proceeding along a dusty road and had just been passed by another car, and the plaintiff's deceased husband had placed his head inside the car to avoid the dust and his body was protruding beyond the side of the car on which he was riding, when his body was hit by a car coming from the opposite direction and passing close by. Here, it is alleged that the defendants' car collided with the Harmon car, as a result of which the plaintiff was thrown to the ground and injured. The present case under its facts is very similar to the case of Atlantic Ice Coal Co. v. Folds, supra, and the ruling in that case is applicable here.
The court did not err in overruling the general and special demurrers to the petition.
Judgment affirmed. Felton and Worrill, JJ., concur.