Hardy v. Brooks, 38526
| Decision Date | 03 February 1961 |
| Docket Number | No. 38526,No. 2,38526,2 |
| Citation | 118 S.E.2d 492,103 Ga.App. 124 |
| Parties | Hubert HARDY et al. v. J. A. BROOKS |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. Questions of negligence and diligence and of cause and proximate cause and whose negligence constituted the proximate cause of the plaintiff's injuries are, except in plain, palpable and indisputable cases solely for the jury, and the courts will decline to decide such questions on demurrer unless reasonable minds cannot differ as to the conclusions to be reached.
2. Where one by his own act, although without negligence on his part, creates a dangerous situation in or along a public highway and it reasonably appears that other users of the highway in the exercise of ordinary care for their own safety may be injured thereby, he must use ordinary care to prevent injury to others from the dangerous situation so created.
3. The trial court did not err in overruling the defendant's general demurrers to the petition.
J. A. Brooks filed his suit for damages for personal injuries arising out of an automobile collision against Hubert Hardy and S. L. Hayes.
The petition alleged substantially the following facts: That on the evening of December 14, 1957, the defendant Hardy, while proceeding in a northerly direction on U. S. Highway 23 toward Macon, Georgia, at a point about 25 or 30 feet below the crest of a hill, located approximately 20 miles north of Cochran, struck and killed a large black colored cow, weighing 900 pounds; that the plaintiff, who was also proceeding in a northerly direction along said highway at an approximate speed of 50 miles per hour, arrived at the crest of said hill about 5 minutes after the collision of the Hardy automobile with the cow; that at the instant in which the plaintiff reached the crest of the hill, the driver of the defendant Hayes' automobile, who was proceeding in a southerly direction along said highway at an alleged speed of 60 miles per hour, reached the south incline of said hill at a point approximately 50 yards below the crest of the hill; that the plaintiff, who was blinded by the bright headlights of the Hayes automobile, struck the carcass of the cow, which was lying in the right lane of the highway; and that the force and impact of the collision caused his vehicle to be thrown upwards and to the side, and to collide with the Hayes automobile.
It is alleged that the defendant Hardy was negligent in: (a) 'Leaving a large, heavy cow which he had killed on the pavement and lane of travel on the highway below the crest of the hill, when it was dark, and said cow obscured from plaintiff's sight, constituting a blockade, dangerous hazard, pitfall and mantrap in the highway;' and (b) 'Failing to warn plaintiff by any means whatsoever, of the blockade, dangerous hazard, pitfall and mantrap he had created and left behind him for plaintiff to run into and be seriously injured.'
The following acts of negligence were alleged against the driver of the Hayes automobile: (a)
The petition alleged that the aforesaid acts of negligence of the defendants combined and concurred to constitute the proximate cause of the injuries for which the plaintiff sought damages.
The judgment under review is the overruling of the general demurrers to the amended petition.
D. D. Smith, Eastman, Stevens & Stevens, Thomson, for plaintiff in error.
R. Beverly Irwin, A. Russell Ross and Edwin W. Ross, Atlanta, for defendant in error.
1. Questions of negligence and diligence and of cause and proximate cause and whose negligence constituted the proximate cause of the plaintiff's injuries are, except in plain, palpable and indisputable cases, solely for the jury, and the courts will decline to decide such questions on demurrer unless reasonable minds cannot differ as to the conclusions to be reached. Long Construction Co. v. Ryals, 102 Ga.App. 66(1), 115 S.E.2d 726. Under these principles the petition clearly stated a cause of action against the defendant Hayes and the trial court did not err in overruling his general demurrer. Fender v. Drost, 62 Ga.App. 345, 7 S.E.2d 800; Bell v. Lewis, 74 Ga.App. 26(2), 38 S.E.2d 686; Code Ann. § 68-1626.
2. It is not alleged in the petition that the defendant Hardy was negligent in striking and killing the cow nor...
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Girone v. City of Winder
...Telecommunications, 212 Ga.App. 235, 441 S.E.2d 464 (1994).2 Failure to eliminate or remove is discussed in Hardy v. Brooks, 103 Ga.App. 124, 126(2), 118 S.E.2d 492 (1961), although in that case the defendant driver, who was not a trespasser, hit a cow on the highway and had the option to r......
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U.S. v. Aretz
...United States: Fifth Circuit Announces Major Development in Georgia Tort Law?, 31 Mercer Law Rev. 1095 (1980), that Hardy v. Brooks, 103 Ga.App. 124, 118 S.E.2d 492 (1961), constitutes limited common law authority under which the United States can be held liable for the plaintiff's injuries......
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Stern v. Wyatt
...decline to decide such questions . . . unless reasonable minds cannot differ as to the conclusions to be reached.' Hardy v. Brooks, 103 Ga.App. 124(1), 118 S.E.2d 492 (1961); Long Const. Co. v. Ryals, 102 Ga.App. 66(1), 115 S.E.2d 726 In Georgia, the law regarding proximate cause has been s......
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Chastain v. Fuqua Industries, Inc.
...failure to realize this fact and act on it was a contributing proximate cause of the injury. Plaintiff's reliance on Hardy v. Brooks, 103 Ga.App. 124, 118 S.E.2d 492 (1961) is, however, misplaced. In that case the defendant created the situation which caused the plaintiff's misfortune by st......