Opinion
34436.
DECIDED JANUARY 17, 1953. REHEARING DENIED FEBRUARY 4, 1953.
Action for damages; from Fulton Superior Court — Judge Pharr. October 24, 1952.
G. Seals Aiken, for plaintiff in error.
Hudson LeCraw, contra.
The petition as amended stated a cause of action, and it was proper for the trial court to overrule the defendant's demurrers, general and special.
DECIDED JANUARY 17, 1953 — REHEARING DENIED FEBRUARY 4, 1953.
Mrs. Lillian F. Johnson brought suit in Fulton Superior Court against William H. Shipman, seeking to recover damages on account of certain personal injuries, sustained because of the alleged negligence of the defendant. The petition tended to show the following facts: that on the morning of June 18, 1952, the plaintiff was driving her Buick automobile at a speed of 25 miles an hour in a westerly direction along Sandtown Road, S.W., and came to the intersection thereof with Centra Villa Drive, S.W., in the City of Atlanta; that at the same time the defendant was driving a Dodge truck in a northeasterly direction on said Centra Villa Drive, and came to this intersection with Sandtown Road; that there was a stop sign posted by lawful authority of said city on said drive near the curbstone and on the right-hand side thereof, same being an indication to drivers on that drive to stop their vehicles before entering said intersection; and that the defendant failed to stop his truck, but drove same onto this intersection, striking the plaintiff's Buick car on the left side and injuring her. The plaintiff set out an ordinance of said city requiring every driver of a vehicle to stop at all signs marked "Stop" before entering an intersection, except where otherwise directed by a police officer or traffic-control signal. There was no such officer or signal at this intersection. The plaintiff set up that the defendant violated Code § 68-303 (g), in that he was on the plaintiff's left in approaching said intersection, and the plaintiff had the right of way over him. The plaintiff alleged further that the defendant was negligent in violating the said ordinance and also said Code section. She alleged that the defendant was further negligence in not seeking to avoid the collision, and in not having the truck under proper control in entering said intersection, and in failing to yield the right of way to the plaintiff. The plaintiff further set out that said Sandtown Road was a through highway and main thoroughfare, and that the defendant was negligent in failing to have his Dodge truck under reasonable control in driving into such intersection and in not yielding the right of way to the plaintiff who was entering same on the "through highway", in violation of the provisions of an ordinance of said city, which she set out and which provides that "The drivers of a vehicle shall stop as required by this act at the entrance to a through highway and shall yield the right of way to other vehicles which have entered the intersection from said through street or which are approaching so closely on said through street as to constitute an immediate hazard, but said driver having so yielded may proceed and the driver of all other vehicles approaching the intersection on said through street shall yield the right of way to the vehicle so proceeding into or across the through street"; and that "the driver of a vehicle shall likewise stop in obedience to a stop sign as required herein, at an intersection where a stop sign is erected at one or more entrances thereto although not part of a through street, and shall proceed cautiously, yielding to vehicles not so obliged to stop which are within the intersection or approaching so closely as to constitute an immediate hazard but may then proceed."
The defendant demurred generally and specially to the petition, claiming that no cause of action against him was set out; that the petition consists of conclusions and argument of the pleader without allegations of fact or principles of law of support them; that the petition shows that the plaintiff's injuries, if any, were caused entirely by her own negligence, because the petition does not show in what manner the plaintiff was driving, how fast or why she did not stop before having a collision with the defendant, and does not show that the plaintiff even saw the truck or was looking where she was going or why she was not looking; and because it does not set forth any negligence on the part of the defendant proximately causing injury and damage to her.
The defendant also demurred specially to various paragraphs of the petition. The trial judge, on October 2, 1952, overruled the general demurrer on each and all grounds, and overruled all grounds of special demurrer, except the special demurrer that the petition failed to show where the plaintiff was in the intersection at the time the defendant's truck collided with her. To this judgment the defendant excepted pendente lite, and assigns error thereon in the present bill of exceptions. The plaintiff amended her petition and alleged that she had just entered said intersection and was in the northeasterly quarter of the intersection. The defendant renewed his demurrers, general and special, and added additional grounds of general demurrer, which are embraced in the original general demurrer that no cause of action was set out. The court on October 24, 1952, overruled the renewed demurrers of the defendant and he excepts to this court.
The court properly overruled the general demurrers. The plaintiff alleged facts which, if proven, would authorize a jury to find that the defendant was negligent. She alleged that she was on a through highway or street; that she entered into the intersection at a lawful speed; and that the defendant, who was on her left and over whom she had the right of way at this intersection, failed to heed a stop signal placed at the intersection on the street on which he was traveling and drove into said intersection and struck her car on the left with his truck, and injured her. She pleaded two city ordinances showing that it was the duty of the defendant to heed such stop sign, and also that the plaintiff had the right of way at this intersection, and she alleged that the defendant failed to comply with such ordinances and as a result thereof ran his truck into her automobile and injured her. The plaintiff also alleged that under the State law (Code, § 68-303 (g)) she had the right of way over him at said intersection, and that it was negligence for the defendant to drive onto same without yielding to her the right of way. "An operator of a vehicle shall have the right of way over the operator of another vehicle who is approaching from the left in an intersecting highway, but shall give the right of way to an operator of a vehicle approaching from the right on an intersecting highway." Code, § 68-303 (g). This statute has been held to apply within the corporate limits of municipalities. Hall v. Ponder, 50 Ga. App. 627 ( 179 S.E. 243); Tyson v. Shoemaker, 83 Ga. App. 33 ( 62 S.E.2d, 586). "A failure to yield the right of way to one entitled to it is negligence per se." Tyson v. Shoemaker, supra. The municipal ordinance pleaded by the plaintiff required the defendant to stop at the stop sign placed at this intersection by the city authorities, and it was negligence for the defendant to fail to stop, and to proceed on across the intersection striking the left side of the plaintiff's automobile, as alleged. "The rule of the Code, § 68-303 (g), and like municipal ordinances, giving the right of way to automobiles approaching intersecting highways from the right, applies not only where the automobiles arrive at the intersection simultaneously or at practically the same time, but also where under all the circumstances, including the distances and speeds of the two cars, the driver of the automobile on the left should reasonably apprehend that a collision will occur unless he yields the right of way. Except in plain and clear cases, it is for the jury to determine whether such a situation existed, and whether the driver on the left violated the rule." Laseter v. Clark, 54 Ga. App. 669 (2) ( 189 S.E. 265); Sweet v. Awtry, 70 Ga. App. 334 ( 28 S.E.2d 154). Questions of negligence, contributory negligence, proximate cause and the like, are to be determined by the jury under proper instructions by the court and the court should not undertake to solve them except in plain and undisputable cases which clearly leave nothing to be determined by the jury. See Rowe v. Camp, 45 Ga. App. 794 ( 165 S.E. 894).
Contributory negligence is an affirmative defense. Woolworth Co. v. Wood, 32 Ga. App. 575 (2) ( 124 S.E. 110); Watts v. Colonial Stages Co., 45 Ga. App. 115, 119 ( 163 S.E. 523). The plaintiff is not required to negative in his petition such negligence. Sims v. Martin, 33 Ga. App. 486 (8) ( 126 S.E. 872); Doby v. W. L. Florence Construction Co., 71 Ga. App. 888, 894 ( 32 S.E.2d 527). As held in the Doby case: "The petition sets forth acts of negligence which make a jury case as to the defendant's negligence. It was not necessary for the plaintiff to negative his own want of care, nor was it necessary for him to allege what acts were done by him in the exercise of care. This would be a matter of affirmative defense, and if the petition, having alleged such acts of negligence by the defendants does not affirmatively disclose facts which demand, not merely authorize, a conclusion that the plaintiff, by the exercise of ordinary care, could have avoided the negligence of the defendant, a general demurrer should not have been sustained."
The petition here sufficiently charged negligence on the part of the defendant, and it does not affirmatively appear therefrom that her injuries were the result of her own negligence, or that, after discovering the negligence of the defendant, she failed to exercise due care to prevent the consequences of the defendant's negligence — that is, failed to exercise ordinary care for her own safety — and the trial court properly overruled the general demurrers.
The petition was not subject to the special demurrers urged and overruled. The plaintiff amended her petition and met the ground of special demurrer sustained. The trial court did not err in overruling the general and special demurrers to the amended petition, and did not err in its ruling of October 2, 1952, excepted to pendente lite, overruling the general demurrers to the petition and overruling all special demurrers, save one, and directing the plaintiff to amend, which she did.
Judgment affirmed. Townsend and Carlisle, JJ., concur.