Syllabus by the Court.
Petition
showing damage to automobile was due to illness causing
driver to lose control not to street railroad's
negligence, did not state case.
From
the allegations of the petition it affirmatively appeared
that the proximate cause of the damage to the plaintiff's
automobile was not the alleged negligence of the street
railway company, but was the sudden illness of the driver of
the automobile, by reason of which she lost control of the
vehicle, so that it ran uncontrolled in front of the street
car with which it collided. The petition failed to set forth
a cause of action, and the general demurrer thereto was
properly sustained.
Error
from Superior Court, Floyd County; John W. Bale, Judge.
Suit by
O. O. Annis against the Georgia Power Company. Judgment for
defendant, and plaintiff brings error.
Affirmed.
Petition
showing damage to automobile was due to illness causing
driver to lose control, not to street railroad's
negligence, did not state case.
O. O
Annis sued Georgia Power Company for damage to an automobile
loaned by the plaintiff to Mrs. W. H. Gaylor and struck by a
street car of the defendant in the city of Rome, Ga., while
in the possession of Mrs. Gaylor. The court sustained a
general demurrer to the petition, and the plaintiff excepted.
The question upon the pleadings is whether the proximate
cause of the damage was the alleged negligence of the
defendant or was the sudden illness of Mrs. Gaylor by reason
of which she lost control of the automobile, so that it ran
uncontrolled in front of the street car with which it
collided.
The
petition contained the following allegations pertaining to
this question:
"9.
That under the ordinances of the city of Rome, Georgia, the
said Fifth Avenue is designated as a boulevard, it being a
street on which many stores and dwellings are built close
to the street, and under the ordinances of the city of
Rome, section 63 of the municipal ordinances of the city of
Rome, all vehicles going from Avenue B into the said Fifth
Avenue are required to come to a standstill before driving
out and into the said Fifth Avenue, and that in said Avenue
B and on the right side of said street some 12 or 15 feet
from said Fifth Avenue, the city of Rome has erected a red
sign with the word 'Stop' written in white letters
thereon, requiring vehicles to come to a standstill before
going out into the said Fifth Avenue."
"12.
That in the afternoon of June 1, 1929, at approximately 6
o'clock in the afternoon of said date, the said Mrs. W
H. Gaylor was driving said automobile of your petitioner
along Avenue B and intending to drive said automobile out
to and into Fifth Avenue, and driving said automobile to
her home on Fifth Avenue, the said Mrs. W. H. Gaylor at
said time intending to obey and observe the municipal
ordinances of the city of Rome which require all vehicles
going from Avenue B out into Fifth Avenue to stop. That at
said time the said Mrs. W. H. Gaylor was driving said
automobile, and no one was riding in said automobile with
her.
"13.
Your petitioner shows, however, that upon the said Mrs. W.
H. Gaylor approaching Fifth Avenue and when approximately
40 feet from said Fifth Avenue, and when she was within
approximately 25 feet of said stop sign aforesaid, suddenly
and all at once she lapsed into unconsciousness and became
desperately and seriously ill, and lost all sense of
hearing or seeing or feeling, the last thing that she, the
said Mrs. W. H. Gaylor, remembers being that, upon being
suddenly stricken
as aforesaid, that for the purpose of stopping the
automobile which she was driving, she tried to get hold of
the hand brake on said car, but she does not remember
whether she ever got her hand on said brake or not.
"14.
That after the said Mrs. W. H. Gaylor became wholly and
absolutely unconscious in the way and manner aforesaid, she
does not know what became of her or of said automobile
which she was driving, but petitioner shows that said
automobile ran on out from Avenue B without stopping for
said stop-sign as required by the ordinances of the city of
Rome, and into said Fifth Avenue and near or onto the track
of the defendant company, said automobile at said time
running on its own momentum and without in any way being
guided or controlled by the said Mrs. W. H. Gaylor.
Petitioner shows that as aforesaid and during the time that
said automobile was running in and along Avenue B for the
distance aforesaid, and when said automobile ran out into
Avenue B and near or on the track of the defendant, that
the said Mrs. W. H. Gaylor was wholly and absolutely
unconscious and helpless, and not knowing where she nor
said automobile was, nor having any consciousness of the
approach of the defendant's street-car on said track,
which was coming from a southeasterly direction and going
in a northwesterly direction.
"15.
Petitioner shows that at the time that the said Mrs. W. H.
Gaylor was driving his said automobile as aforesaid, that
she was suddenly stricken with said unconsciousness as
aforesaid, and that she was driving said automobile
carefully and cautiously at a rate of speed of
approximately 12 to 15 miles per hour, and in the event she
had not been overcome by said unconsciousness she would
have stopped said automobile where the city of Rome by its
ordinances requires as aforesaid.
"16.
Petitioner shows that at the time said automobile ran out
from Avenue B into said Fifth Avenue, said automobile was
running at a rate of speed of 12 to 15 miles per hour.
"17.
That as said automobile ran near or upon the track of the
defendant, that a street-car of the defendant, operated by
a motorman of the defendant whose name is to petitioner
unknown, and running in a northwesterly direction, struck
the left front side and part of said automobile as it was
near or on the track of the defendant, tearing up and
mashing up the front part of said automobile as is
hereinafter set forth.
"18.
That said motorman was operating said street car at the
time that said street-car collided with your
petitioner's automobile at a high and dangerous rate of
speed of 35 miles per hour, and that the proximate cause of
the injury sustained to your petitioner's automobile
was the result of said street car striking said automobile
while being run at the aforesaid high and dangerous rate of
speed.
"19.
Petitioner charges the defendant with negligence in
operating its said street-car at the intersection of said
streets at the high and dangerous rate of speed of 35 miles
per hour, and says that on the right side of said Avenue B
and extending to the sidewalk on Avenue B is a dwelling
house which cuts off all view of vehicles coming out of
Avenue B into Fifth Avenue from a motorman driving a street
car in a northwesterly direction on the defendant's
track, until
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