ARGUED FEBRUARY 7, 1966.
DECIDED JULY 1, 1966.
Action for damages. Ware Superior Court. Before Judge Hodges.
Jones Kemp, Charles M. Jones, Bennett, Pedrick Bennett, E. Kontz Bennett, for appellants.
Benjamin Smith, Jr., for appellee.
The petitions stated causes of action sufficient as against the general demurrers.
ARGUED FEBRUARY 7, 1966 — DECIDED JULY 1, 1966.
These are separate actions for damages against Leon A. Wilson, II, brought by Ovelia Anderson, for personal injuries, and by George Ann Brown, for the wrongful death of her husband, Franklin Brown, resulting from the alleged negligence of the defendant in the operation of his automobile. Plaintiff Brown's petition alleged substantially as follows: That on or about December 11, 1962, at approximately 6:30 p. m., plaintiff's deceased husband, Franklin Brown, was operating a loaded 1963 Chevrolet pulpwood truck in a southerly direction on U.S. Highway 17 in Bryan County; that when he reached a point about .7 mile north of Richmond Hill, the truck's left rear wheels came off, causing it to overturn in the southbound lane; that Brown was not thereby injured; that, due to the darkened condition because of the time of day, Brown went to the rear of the overturned truck and began warning oncoming traffic of the hazard by means of a flashlight; that several vehicles stopped in obedience to his warnings and some of them passed the overturned truck via the northbound lane when it was clear; that several other vehicles were parked by their drivers on the westerly shoulder of the road with their parking lights on in order to remove them from the highway; that at approximately 7 p. m. the defendant, driving his 1962 Pontiac automobile in a southerly direction on said highway, approached from the north traveling at a high, excessive and dangerous rate of speed of approximately 70 m.p.h. and did not heed the hazardous and congested condition then and there existing and did not heed the signals of plaintiff's decedent, but caused his car to continue in its path of travel, in said hazardous and congested area, and there collide with and strike plaintiff's decedent, causing the alleged injuries which resulted in his death on December 18, 1962. The acts of negligence of the defendant, which are alleged to have been the proximate cause of the injuries and wrongful death, are as follows: (a) negligence per se in violating Code Ann. § 68-1626 (b) (2); (b) negligence per se in violating Code Ann. § 68-1626 (a): (c) negligence per se in violating Code Ann. § 68-1626 (c): (d) failure to keep a proper lookout ahead to discern persons and vehicles within his lane of travel in order to avoid striking the decedent; (e) failure to give any warning of his approach, either by voice, horn, signal or any other mechanical device; (f) causing his automobile to strike the decedent as alleged.
Plaintiff Anderson's petition alleged the same acts of negligence as to her and alleged a similar factual situation with the exceptions hereafter noted. The details of the overturning of the truck are not alleged, it being alleged merely that the plaintiff and her husband, who were driving in a southerly direction on said highway, parked their automobile on the westerly shoulder along with several others upon seeing the overturned truck at about 7 p. m. It is alleged that the plaintiff and her husband were standing in the vicinity of the overturned vehicle in the road, as were other persons. It was neither alleged that the decedent was or had been giving any signal warning of the presence of his disabled truck nor that the parked automobiles. or any of them, had their parking lights on.
The court sustained the defendant's general demurrer to the petition in both actions and the plaintiffs appeal from said judgments in their respective cases.
In an action founded upon negligence, mere general averments of negligence are sufficient as against a general demurrer. Hudgins v. Coca-Cola Bottling Co., 122 Ga. 695 (1) ( 50 S.E. 974); Close v. Rape, 109 Ga. App. 230 ( 136 S.E.2d 16) and cit. "It is well-settled law that questions of negligence, diligence, contributory negligence, proximate cause, and the exercise of ordinary care for one's protection, ordinarily are to be decided by a jury, and a court should not decide them on demurrer, except in plain and indisputable cases." De Golian v. Faulkner, 74 Ga. App. 866, 869 ( 41 S.E.2d 661) and cit. Accepting the allegations of the petitions as true, they do not demand an inference of contributory negligence on the part of either plaintiff. In the absence of special demurrers calling for the more particular and detailed allegations which the defendant contends in his brief are essential, the general allegations of the defendant's negligence are sufficient as against the general demurrers; therefore, the court erred in its judgments sustaining the general demurrers to the petitions in both cases.
Judgments reversed. Frankum, J., concurs. Pannell, J., concurs specially.
The part of the specifications of negligence in the two petitions alleges that certain acts were negligence per se because of the violation of the following: Code §§ 68-1626 (b)2, 68-1626 (a), and 68-1626 (c). There are no such Georgia Code sections, nor are there any such sections of Georgia Law as Code Ann. §§ 68-1626(b)2, 68-1626 (a), and 68-1626 (c). Mallard v. State, 220 Ga. 31 ( 136 S.E.2d 755); Morgan v. Todd, 214 Ga. 497 ( 106 S.E.2d 37); Bowen v. State, 215 Ga. 471 ( 111 S.E.2d 44); Underwood v. Atlanta W. P. R Co., 217 Ga. 226 ( 122 S.E.2d 100). However, since the facts constituting the alleged violation of law are set forth in the allegations of negligence and the decision here being on general demurrer, the allegations are sufficient.