Opinion
30445.
DECIDED MAY 24, 1944.
Damages; from Putnam superior court — Judge George S. Carpenter. January 22, 1944.
Martin, Martin Snow, for plaintiff in error.
M. F. Adams, contra.
1. The court did not err in overruling the general demurrer to the petition.
2. ( a) The plaintiff is not entitled to recover in any case where by the exercise of ordinary care he can avoid the consequences of another's negligence.
( b) Under the rule of comparative negligence and apportionment of damages the plaintiff may recover, even though he contributed in some way to the injury sustained, provided his negligence is less than that of the defendant, and he could not, by the exercise of ordinary care, have avoided the negligence of the defendant. In such a case the damages will be apportioned.
( c) The question of whose negligence and what negligence is the proximate cause of the injury, and the degree of negligence as between the parties, is generally a jury question, under the whole evidence, to be determined by the jury under proper instructions from the court.
( d) Where a petition alleges negligence of the defendant as the proximate cause of the injury, the petition need not negative contributory negligence on the part of the plaintiff.
( e) Even though inference of contributory negligence on the part of the plaintiff may be drawn from the allegations of the petition, the petition will not be dismissed on demurrer unless in construing the petition most strongly against the plaintiff it appears that the plaintiff, by the exercise of ordinary care, could have avoided the consequences of the defendant's negligence.
( f) The courts should decline to decide questions of negligence on demurrer except in plain and indisputable cases.
DECIDED MAY 24, 1944.
J. Luther Clements sued Southern Stages Inc., a common carrier, for damage to personal property. We deem it better to set forth certain paragraphs of the petition: "3. That said defendant has injured and damaged your petitioner in the sum of $700, by reason of these facts: On the 7th day of July, 1942, between the hours of eleven o'clock a. m., and two o'clock p. m., a truck belonging to your petitioner, and loaded with sacks of feed, was being driven in the direction of Eatonton, on the State and Federal highway between Eatonton and Macon, and was approaching the concrete highway bridge over Little River on said highway. The said bridge is a very high one, and the approach from the Macon side is a road graded into the side of a hill, and is down grade. Three or four hundred yards from said bridge, when your petitioner's truck was being driven at a speed not in excess of thirty-five miles per hour, a bus belonging to and operated by said defendant passed said truck from the rear and continued toward said bridge in front of and followed by said truck, which was following said bus at a distance of about 70 yards. Upon reaching the end of said bridge, and before entering thereon, without a warning signal of any nature, the said bus was suddenly stopped directly in front of your petitioner's said truck, blocking the entrance to said bridge so that the driver of petitioner's truck was obliged, because he could not stop in time to avoid colliding with the rear of said bus (which was filled with passengers), to turn suddenly to the left in the effort to pass the said bus after it had stopped, and to apply brakes in order to reduce his speed, with the result that in the sudden emergency the truck got out of control, and left the road at the end of said bridge, falling down the bank of the river a distance of about 30 feet. 4. Your petitioner shows that when the said bus was stopped at the end of said bridge (there being no apparent necessity nor reason for so stopping) there was left for said truck, on the left of said bus, a space between said bus and the end of the railing of said bridge so narrow that unless headed straight the said truck must have struck either the rear of said bus or the bridge railing; that having just passed said truck, defendant's driver must have known that it was following, at a short distance, and was loaded, and he should have anticipated that said truck might not be able to stop as the bus did. 6. Your petitioner specifies as negligence, and as the proximate cause of said damage, the act of defendant's driver and servant in stopping the said bus immediately in front of your petitioner's truck, and in causing an emergency in which it was necessary to turn the said truck suddenly to the left to avoid a collision with the rear of the defendant's said bus, and damage to both vehicles and injury to defendant's passengers; and in stopping the said bus on the highway, without any warning signal whatever, and without turning out of the traffic lane."
The defendant demurred generally, "because said petition fails to set out any cause of action," and, "because said petition shows on its face that the plaintiff acting by and through its servant or agent was negligent, and that the plaintiff's negligence was the proximate cause of his injury and damages." The court, in overruling the demurrer, stated: "Upon consideration of defendant's general demurrer to plaintiff's petition . . it is ordered that said demurrer be, and the same is hereby overruled, on authority of Minnick v. Jackson, 64 Ga. App. 554; Georgia Stages Inc. v. Miller, 67 Ga. App. 27, 30; Morrow v. Southeastern Stages Inc., 68 Ga. App. 142, 148; Wilson v. Pollard, 62 Ga. App. 781, 786; Payne v. A. B. C. Truck Lines Inc., 61 Ga. App. 36, 38; Cone v. Davis, 66 Ga. App. 229, and Code Section 68-314. The cases of Horton v. Sanchez, 57 Ga. App. 612, and Barnwell v. Solomon, 59 Ga. App. 507, cited by defendant, are distinguishable on the facts from the instant case." The defendant excepted to the judgment overruling the demurrer.
1. Counsel for the plaintiff in error, in a very able and clear manner, set forth an analysis of the petition from their viewpoint, which we quote: "(1) This accident happened in broad open daylight between 11 o'clock a. m. and 2 o'clock p. m. (2) The highway was straight, but there was a steep decline leading to a bridge. (3) Both vehicles, namely, the plaintiff's truck and the defendant's bus, were going in the same direction. The truck was following the bus at a distance of 70 yards, or 210 feet. (4) The rate of speed as these vehicles approached the bridge did not exceed 35 miles an hour. (5) The bus stopped suddenly at the end of the bridge. (6) The plaintiff in paragraph 4 admits there was sufficient space to pass on the left side of the bus if the truck had been going straight. (7) The petition does not allege a reduction of speed in going down a `steep descent' or on approaching a bridge as required by Ga. Code, Section 68-303 (i). (8) The petition does not allege that the plaintiff's driver was free from negligence or that his brakes were in good condition." Counsel further enter into a discussion of the decisions which the court named as the basis for the judgment, and refers this court to additional cases which are claimed to be controlling on this court, and under the principles of which it is contended this case should be reversed. The first is State Highway Department v. Stephens, 46 Ga. App. 359 ( 167 S.E. 788). In that case the opinion reveals that the defendant's car was parked on a bridge in the highway, and that when the plaintiff rounded a curve on the highway at about noon, the defendant's car was observed, and that when the plaintiff ascertained that the defendant's car was not moving it was too late for him to stop his car in time to avoid the collision. The court stated that since it was not alleged in the petition at what distance the plaintiff was from the defendant's car when it was first observed parked on the bridge, or at what rate of speed the plaintiff's car was being operated, the petition should be taken as alleging that the plaintiff was at such a distance from the defendant's car, and was operating his (the plaintiff's) car at such a speed that he should have controlled it and avoided the injury. In our opinion the facts of that case are quite different from the case at bar. In another case, Fraser v. Hunter, 42 Ga. App. 329 ( 156 S.E. 268), the court held: "A person operating an automobile along a public highway in the daytime, who is injured by running into an automobile parked in the highway, which he does not see, is guilty of negligence proximately causing the injury, where the parked automobile is not obscured from his view and comes within his range of vision in time for him to avoid the injury. Ordinary care requires him, under the circumstances, to see the parked automobile in time to avoid the injury." It is our view that the facts in that case differentiate it from the instant case. Our attention is also called to the case of Baker v. Atlantic Coast Line R. Co., 52 Ga. App. 624 ( 184 S.E. 381). It is also our opinion that the facts in that case are not sufficiently similar to those of the case at bar to require a reversal of the judgment here.
2. The Code, § 105-603, provides: "If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover. In other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained." See to the same effect, Sims v. Martin, 33 Ga. App. 486 (8) ( 126 S.E. 872). This court stated in Fisher Motor Car Co. v. Seymour, 9 Ga. App. 465 ( 71 S.E. 764): "One who seeks to recover for the negligence of another is not required to negative contributory negligence on his part." In this connection we are mindful that it is the contention of the plaintiff in error that the allegations of the petition itself show that the damage was caused by the failure of the defendant in error to exercise due care, though the allegations of the petition also show that the plaintiff in error might have been negligent to some extent. We do not think the allegations of the petition, even when construed most strongly against the petitioner, are susceptible to this construction. This court held in Sims v. Martin, supra: "That the plaintiff, when he saw the defendant's automobile coming towards him, suddenly jumped in front of it and was injured does not conclusively and as a matter of law establish negligence on the part of the plaintiff, or that if negligent it was the proximate cause of his injury. The evidence authorized the finding that the defendant's negligence contributed proximately to this situation." We might call attention also to Southern Railway Co. v. Slaton, 41 Ga. App. 759 ( 154 S.E. 718), where several principles applicable to the question we now have under consideration are dealt with very clearly and with numerous citations of authority to sustain our position, and wherein the court said: "Accordingly, it has been many times held that questions as to diligence and negligence, including contributory negligence, and what negligence constitutes the proximate cause of the injury complained of, are questions peculiarly for the jury, such as this court will decline to solve on demurrer except where such questions appear palpably clear, plain, and indisputable." Since there are acts of negligence alleged in this petition which are not based upon any statutory regulation, we think we might also very well consider the following statements in Southern Railway Company v. Slaton, supra: "Except where a particular act is declared to be negligence, either by statute or by a valid municipal ordinance, the question as to what acts do or do not constitute negligence is for determination by the jury, and it is error for the presiding judge to instruct them what ordinary care requires should be done in a particular case." While it must be conceded that the allegations of negligence are somewhat general, still we think they are sufficiently particularized and broad to admit the application of the principle immediately above quoted. The court properly declines to decide questions of negligence on demurrer except in plain and indisputable cases. Western Union Telegraph Co. v. Spencer, 24 Ga. App. 471 ( 101 S.E. 198); Larkin v. Andrews, 27 Ga. App. 685 ( 109 S.E. 518); Tybee Amusement Co. v. Odum, 51 Ga. App. 1 (3) ( 179 S.E. 415); Lewis v. Powell, 51 Ga. App. 129 ( 179 S.E. 865). It is our opinion that the allegations of the petition, construed most strongly against the plaintiff, are sufficient, as against a general demurrer, to carry the case to the jury. The jury has the right, and it is peculiarly within their province generally to determine questions of negligence. In determining whose negligence and what negligence proximately caused the alleged injury, the jury will take into consideration allegations of negligence against the defendant as such appear from the petition, supported by evidence, and such inferences of negligence as may be drawn from the pleadings sustained by evidence against the plaintiff. Also, the jury may consider the principles specified in the Code, § 68-301, as follows: "No person shall operate a motor vehicle upon any public street or highway at a speed greater than is reasonable and safe, having due regard for the width, grade, character, traffic, and common use of such street or highway, nor so as to endanger life or limb or property in any respect whatsoever; but said speed shall not exceed that tabulated below." It must be kept in mind, even though we concede that inferences of negligence on the part of the plaintiff might be drawn from certain allegations of the petition, still we must not forget that the plaintiff alleges that the bus came to a stop without giving any warning whatsoever as required by the Code, § 68-303 (f). If the jury should conclude that the defendant was negligent as alleged, and that the plaintiff could not have avoided the result of the defendant's negligence by the use of ordinary care, then the jury would be authorized to compare the negligence of both parties if, under the evidence, both were negligent. In such comparison the jury might find, under the evidence, that while both parties were negligent, the plaintiff was less negligent than the defendant; in which event the jury would be authorized to apportion the damages. It is true the question presented is close, but after due consideration it appears to be one of fact for the jury rather than one of law for the court.
Judgment affirmed. Broyles, C. J., and MacIntyre, J., concur.