Cox v. Norris, 30352.

• Decision Date: 04 February 1944
• Docket Number: No. 30352.,30352.
• Citation: 28 S.E.2d 888
• Parties: COX. v. NORRIS.
• Court: Georgia Court of Appeals

28 S.E.2d 888

COX.

v.NORRIS.

No. 30352.

Court of Appeals of Georgia,

Division No. 2.

Feb. 4, 1944.

Syllabus by the Court.

1. In an action for damages for injuries received in an automobile accident alleged to have been the proximate result of certain alleged acts of negligence of the defendant, the court did not err in sustaining the special demurrer to the allegations of the petition with respect to the habit and reputation of the defendant in operating an automobile on other and different occasions.

2. The allegation that the defendant was guilty of negligence per se in driving into the highway without observing the conditions of traffic as required by a state statute, was a mere conclusion of the pleader, it not being alleged what the conditions of traffic were, and no specific statute being identified.

3. Questions of negligence, contributory negligence, proximate cause, and failure to exercise ordinary care to avoid the consequences of another's negligence, are generally questions of fact for the jury, and where the evidence is materially conflicting, the discretion of the trial judge in overruling the general grounds of the motion for a new trial will not be disturbed.

4. The court did not err in confining the cross-examination to matters relevant to the issue on trial.

5. Under the facts of this case, in the absence of a request, the court did not err in failing to charge the jury as to admissions made by the pleadings.

6. Where there was no request to charge upon the subject of admissions, the failure to allude to them in the charge was not error.

7. The verdict in favor of the defendant was authorized, no error of law appears, and the court did not" err in overruling the motion for a new trial.

Error from Superior Court, Pike County; Chester A. Byars, Judge.

Action by John A. Cox against Holloway Norris to recover for injuries sustained in a collision between plaintiff's motorcycle and defendant's truck. To review a judgment on a verdict for defendant, and overruling plaintiff's motion for new trial, plaintiff brings error.

Affirmed.

Wm. A. Thomas, of Atlanta, for plaintiff in error.

R. C, Johnson, of Zebulon, and Beck, Goodrich & Beck, of Griffin, for defendant in error.

SUTTON, Presiding Judge.

John A. Cox sued Holloway Norris for damages on account of injuries received by him in a collision of his motorcycle with the defendant's truck. His petition alleged substantially as follows: He was operating a motorcycle along the highway between Thomaston and Zebulon and as he approached the farm of the defendant which abuts on the highway and was some 300 or 400 yards away, the defendant drove a truck from his driveway up to and upon a portion of the highway; upon observing the truck, the plaintiff reduced the speed of his motorcycle to about 50 miles an hour, and gave warning of his approach; when he was within a few yards of the truck, he turned the motorcycle to the left side of the highway, considering the direction he was traveling, in order to pass the truck, whereupon the defendant, unnecessarily and without warning, drove the truck rapidly across the highway, thereby causing the collision between the motorcycle and the truck in which the plaintiff was severely and permanently injured in the particulars described; he had suffered physical and mental pain from his injuries and would continue to suffer from them; at the time of his injuries he was 22 years of age with a life expectancy of 50 years and was capable of earning $100 a week; the defendant was negligent, and proximately and directly caused the plaintiff's injuries because the defendant "(a) did not see the approach of plaintiff; (b) did suddenly, violently, unnecessarily, and without warning to plaintiff, cause his said truck to lunge completely and suddenly across said highway in the path of plaintiff's motorcycle at a time when plaintiff had a right to drive to the left of said highway and pass defendant; (c) that on information and belief defendant is by reputation in the habit of negligently having such collisions at said scene or similar scenes and such habit and reputation con-stitutes negligence by habit; (d) defendant did not, in obedience to a state statute, to which attention of the court is prayed, observe the conditions of traffic before he suddenly and without warning, violently lunged his said truck across said highway, causing said collision, and therefore is guilty of negligence per se." Judgment was sought in the sum of $50,000. By amendment, the plaintiff alleged that the defendant was negligent in planting a bush in his yard which obstructed the view of the highway as the defendant approached same from his barnyard.

The defendant filed a general demurrer to the petition, and special demurrers to the grounds of negligence set out above as (c) and (d), upon the grounds that same were irrelevant and immaterial; that they did not set out any valid ground of negligence against the defendant; that they were mere conclusions of the pleader, and were not correct statements of the law.

The court overruled the general demurrer, but sustained the special demurrers, and allowed the plaintiff 30 days in which to amend the petition. The plaintiff did not amend, but assigned error pendente lite on the ruling of the court sustaining the special demurrers, and assigned error thereon in the bill of exceptions.

A verdict and judgment were rendered in favor of the defendant, and the plaintiff filed a motion for a new trial, which was later amended. The court overruled the motion, and the exception here is to that judgment and to the judgment sustaining the special demurrers.

1. The court did not err in sustaining the special demurrer to the allegation of the petition, "that on information and belief, the defendant is by reputation in the habit of negligently having such collisions at said scene or similar scenes and such habit and reputation constitutes negligence by habit." In actions for damages for injuries sustained in an automobile accident alleged to have been caused by the negligence of the defendant, the issue before the court is the negligence or non-negligence of the defendant at the time and place of the accident. 45 C.J. 1246, § 809. And each transaction...