Beadles v. Smith, 39374
| Decision Date | 25 April 1962 |
| Docket Number | No. 39374,No. 3,39374,3 |
| Citation | 106 Ga.App. 31,126 S.E.2d 250 |
| Parties | C. V. BEADLES et al. v. Lois SMITH |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1-6. The demurrers to the petition were properly overruled as was the motion for judgment notwithstanding the verdict.
7. It is incumbent upon the court to charge upon an issue made both by the pleadings and the evidence, even in the absence of a written request.
Lois Smith filed suit in the City Court of Douglas seeking damages from C. V. Beadles and J. J. Crawford, Jr. d/b/a Beadles-Crawford Lumber Company on account of the death of her husband, which she alleged occurred about 2:45 a. m. when the automobile he was driving ran into defendants' tractor-trailer that had been parked within the intersection of Highways Nos. 158 and 82, the intersection being a 'Y' type. It is alleged that the tractor-trailer was parked in an unlighted condition within the triangular area between the paved portions of the two highways, but in an area alleged to be a part of the highway system and which is generally used by traffic turning from one highway into the other. This triangular area allegedly measured approximately 400 by 200 by 266 feet, and it was alleged that the defendants were negligent in parking the unlighted vehicle in the intersection in violation of Code Ann. §§ 68-1668(a), 68-1670(a)7 and 68-1710 and in such a manner as to constitute a hazard to those who might travel on the highway.
To the petition defendants filed a general demurrer and 11 grounds of special demurrer, all of which were overruled, and an answer. The case was tried before a jury and plaintiff received a verdict for $29,000. A motion for judgment non obstante veredicto and a motion for new trial, with grounds added by amendment, were overruled and defendants excepted.
The suit of the guest passenger is considered in Beadles v. Bowen, Ga.App., 126 S.E.2d 254.
Larry E. Pedrick, Waycross, H. J. Quincey, Douglas, for plaintiff in error.
Elie L. Holton, George R. Jordan, J. Laddie Boatright, Douglas, for defendants in error.
1. The allegations of the petition were sufficient to withstand a general demurrer. Stanfield v. Johnson, 95 Ga.App. 349, 98 S.E.2d 106. A plaintiff is not ordinarily required to negative contributory negligence on his part in his petition. Central Georgia Elec. Membership Corp. v. Heath, 60 Ga.App. 649, 651, 4 S.E.2d 700. The contention that plaintiff's husband could have avoided the consequences of defendant's negligence by the exercise of ordinary care is not demanded as a matter of law from the facts pleaded and is a matter of defense.
2. Special grounds of demurrer 2, 4, 5, 6, 7, 10 and 12 attack as being repugnant and contradictory allegations of the petition that defendants' tractor-trailer was parked 'within the immediate and improved portion of the aforesaid intersection,' and that it was 231 feet from the point where the western edge of the paved portion of Highway No. 158 intersects with the northern edge of the paved portion of Highway No. 82. We think that these grounds of demurrer were properly overruled. A factual situation which closely parallels that here, and where the type of intersection is practically identical with that here, was involved in Stanfield v. Johnson, 95 Ga.App. 349, 98 S.E.2d 106, supra (), where it was settled that the traveled portion of the triangular area in the 'Y,' used by vehicles in turning from one highway into the other, is a part of the road or highway within the meaning of the Code sections regulating traffic on the highways, though that area was not paved. There was no contradiction or repugnancy in the allegations here.
3. Special demurrers numbered 3, 10 and 11 attack the allegations of the petition relative to the presence of a stop sign, and the parking of the vehicle within the prohibited distance as contained in Code Ann. § 68-1670(a)7 (Ga.L.1953, Nov. Sess., p. 598) on the grounds that the petition fails to allege that the stop sign was located on or was intended to control traffic on the highway over which plaintiff's husband traveled, and that it does not appear that parking the tractor-trailer in proximity thereto was the proximate cause of his injuries. Since questions of causation and proximate cause are for the jury (Charles v....
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Beadles v. Bowen, 39473
...May 16, 1962. Syllabus by the Court. 1. The allegations of the petition as amended were substantially the same as those in Beadles v. Smith, Ga.App., 126 S.E.2d 250, and a general demurrer thereto was properly 2. The motion for judgment notwithstanding the verdict was properly overruled as ......
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Slaughter v. Linder
...685; Jackson v. Matlock, 87 Ga.App. 593(1), 74 S.E.2d 667; Smith v. Harrison, 93 Ga.App. 576(1), 89 S.E.2d 273; and Beadles v. Smith, 106 Ga.App. 31(4), 126 S.E.2d 250. The only enumeration of error relative to this matter is that which deals with the 'failure of the court of charge the jur......
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American Family Life Assur. Co. v. Welch, s. 44614
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