Atlanta Stove Works, Inc. v. Hollon

• Decision Date: 01 December 1965
• Docket Number: No. 41277,No. 1,41277,1
• Citation: 146 S.E.2d 358,112 Ga.App. 862
• Parties: ATLANTA STOVE WORKS, INC., et al. v. Everett HOLLON
• Court: Georgia Court of Appeals

Page 358

146 S.E.2d 358

112 Ga.App. 862

ATLANTA STOVE WORKS, INC., et al. v. Everett HOLLON.

No. 41277.

Court of Appeals of Georgia, Division No. 1.

Dec. 1, 1965.

Rehearing Denied Dec. 20, 1965.

Syllabus by the Court

1. The overruling of the special demurrer attacking duplicitous allegations was harmless error because there was no competent evidence that the defendant entered and cleared the intersection while the caution light was exhibited.

4. The court did not abuse its discretion in overruling the motion for a mistrial based on the closing argument of counsel for the plaintiff.

2, 3, 5. The remaining special grounds of the motion for a new trial are without merit.

Everett Hollon filed suit against Atlanta Stove Works, inc., and Robert S. Letson to recover damages for alleged personal injuries and property damage arising out of a collision between the plaintiff's automobile and the defendant company's truck at a controlled intersection. Both defendans filed separate answers, the defendant company filing a cross action therewith, and six special demurrers, four of which were overruled. The trial of the case before a jury resulted in a verdict and judgment in favor of the plaintiff in the amount of $33,000. The defendants except to the judgment of the court in overruling their special demurrers and their timely motion for a new trial as amended.

Kilpatrick, Cody, Rogers, McClatchey & Regenstein, Thomas C. Shelton, William W. Cowan, Atlanta, for plaintiffs in error.

Houston White, Sr., Atlanta, for defendant in error.

FELTON, Chief Judge.

1. Special demurrer numbered 2 is as follows: 'Defendants demur specially to, and move to strike, Paragraphs 40(a), 40(b), 40(c), and 40(d) of the petition on the ground that the allegations therein are duplicitous, evasive and uncertain in that the allegations in said paragraphs can be construed as alleging that defendant Letson proceeded into said intersection on a yellow or amber light and that defendant Letson proceeded into said intersection against a red light, and defendants, therefore, cannot determine upon which of said duplicitous theories or allegations the plaintiff intends to proceed.'

Paragraphs 40(a), (b), (c), and (d) of the petition allege as follows: 'That defendant Atlanta Stove Works, Inc., and defendant Letson were negligent, jointly and severally, in that said Letson at said time and place: (a) Drove said trailer truck toward said intersection at said time and place without heeding and in disobedience to the official traffic control light suspended in the middle of said intersection, and the official traffic control light suspended on he pole at the southeast corner of said intersection, each of which was facing defendant Letson as he drover toward said intersection, and was lighted with the yellow or amber light facing west on Campbellton Road, which warned defendant Letson that the red light signal would be exhibited immediately thereafter and that he should not drive said tractor-trailer into or across said intersection when said red light was exhibited, but should bring said truck to a stop and not enter said intersection while said yellow or amber light was exhibited, contrary to and in violation of Section 30.95 of the Atlanta City Code of 1953, as amended, and reenacted as Section 30.95 of the Traffic Code of the City of Atlanta, approved August 7, 1957, a valid ordinance of the City of Atlanta in existence at said time and place and a copy of which ordinance is hereto attached, marked Exhibit B, and made a part hereof, and particularly subparagraph (b) thereof. Petitioner charges said negligence as negligence per se. (b) Failed to exercise ordinary care in not observing and in not obeying the traffic control lights suspended in the middle of said intersection, and the traffic control light suspended on the pole at the southeast corner of said intersection, each of which was facing defendant Letson as he drove toward said intersection, and was lighted with the yellow or amber light facing west on Campbellton Road and toward said Letson, and which defendant Letson knew warned him that the red light signal would be exhibited immediately thereafter and that he should not drive said tractor-trailer into or across said intersection when said red light was exhibited, but should bring said truck to a stop and not enter said intersection while said yellow or amber light was exhibited. (c) Drove said tractor-trailer truck into and across said intersection at said time and place and into the automobile of petitioner, without heeding and in disobedience to the official traffic-control light suspended in the middle of said intersection, and the official traffic-control light suspended on the pole at the southeast corner of said intersection, each of which was facing defendant Letson as he drove into and across said intersection, and was lighted with a red light facing west on Campbellton Road, which warned and required defendant Letson to stop said tractor-trailer before entering said intersection, and to hold said tractor-trailer standing or stopped until the green light in said signal lights facing him became lighted, contrary to and in violation of Section 30.95 of the Atlanta City Code of 1953, as amended, and reenacted as Section 30.95 of the Traffic Code of the City of Atlanta approved August 7, 1957, a valid ordinance of the City of Atlanta in existence at said time and place and a copy of which ordinance is hereto attached, marked Exhibit B, and made a part hereof, and particularly subparagraph (c) thereof. Petitioner charges said negligence as negligence per se. (d) Failed to exercise ordinary care in driving said tractor-trailer truck into and across said intersection at said time and place and into the automobile of petitioner, without heeding and in disobedience to the traffic-control light suspended in the middle of said intersection, and the traffic-control light suspended on the pole at the southeast corner of said intersection, each of which was facing defendant Letson as he drove into and across said intersection, and was lighted with a red light facing west on Campbellton Road and toward said Letson, said light having become and before defendant Letson drove said tractor-trailer truck into said intersection.'

Paragraphs 40(a) and (b), supra, construed against the pleader, allege that the defendant driver disobeyed the yellow or amber traffic signals, which warned him that he should not enter the intersection while said yellow or amber lights were exhibited, as required by the quoted applicable provisions of the Atlanta City Code (paragraph 40(a) of the petition) and by the exercise of ordinary care (paragraph 40(b) of the petition). Section 30.95(b) of the Atlanta City Code of 1953, as amended, and of the Traffic Code of the City of Atlanta defines the meaning of the yellow caution light following the green or 'go' signal as follows: 'vehicular traffic facing the signal is thereby warned that the red or 'Stop' signal will be exhibited immediately thereafter and such vehicular traffic shall not enter or be crossing the intersection when the red or 'Stop' signal is exhibited.' (Emphasis supplied.) The above provisions do not prohibit traffic from entering the intersection when the yellow or amber caution light is exhibited. The only requirement is that traffic not 'enter or be crossing the intersection when the red or 'Stop' signal is exhibited.' To construe the ordinance as absolutely requiring traffic not to enter an intersection on a caution signal would not only defeat the purpose of such a signal, i. e., to provide a short warning period during which traffic which is too close to the intersection to stop can clear the intersection, but would also necessitate very sudden stops and stopping of vehicles out into the intersections, both of which would be very dangerous. The only construction which can be sustained by logic and a proper reading of the ordinance is that a driver may enter an intersection with a caution signal if he is driving within the applicable speed limit at the time the caution signal is exhibited, if he cannot stop on the near side of the intersection without making such a sudden stop as to be dangerous and if he can so enter and still completely clear the intersection before the stop signal is exhibited. Therefore, an allegation merely that a driver entered an intersection when the caution light was exhibited does not, without more, amount to either an allegation of negligence per se or any other type of negligence.

The demurrer, however, was not based upon the contention that paragraphs 40(a) and (b) do not allege actionable negligence, but rather that the four paragraphs, read together, set out two conflicting factual situations, i. e., that the defendant driver entered the intersection on the caution signal (paragraphs 40(a) and (b)) and on the stop signal (paragraphs 40(b) and (c)). As has been indicated hereinabove, the allegations that the defendant 'disobeyed' the caution light signals, which signals meant that he should not enter the intersection when they were displayed, construed against the pleader, amount to allegations that the caution lights were displayed at the time the defendant driver entered the intersection. Paragraphs 40(c) and (d) of the petition, on the other hand, plainly allege that the red lights were exhibited facing the defendant as he entered the intersection. 'Duplicity in pleading on the part of a plaintiff consists, not in asserting a right to and praying for relief inappropriate to the cause of action set forth in his petition, but in making therein equivocal statements with a view to getting the benefit of two or more inconsistent theories as to his right to recover, or in basing his complaint upon different versions with respect to the facts which gave rise thereto.' Orr v. Cooledge, 117 Ga. 195(3), 43 S.E. 527; Hartley v. Hartley, 198 Ga. 294, 31 S.E.2d 655; ...