Hein v. Morgan, 41530

• Decision Date: 29 September 1965
• Docket Number: No. 41530,No. 2,41530,2
• Citation: 112 Ga.App. 535,145 S.E.2d 780
• Parties: Leonel H. HEIN v. Eddie L. MORGAN
• Court: Georgia Court of Appeals

Page 780

145 S.E.2d 780

112 Ga.App. 535

Leonel H. HEIN v. Eddie L. MORGAN.

No. 41530.

Court of Appeals of Georgia, Division No. 2.

Sept. 29, 1965.

Rehearing Denied Oct. 25, 1965.

Syllabus by the Court

The defendant's demurrers to the petition, general and special, were properly overruled. There was no error in the overruling of the motions for judgment notwithstanding the verdict and for new trial.

Plaintiff Morgan was driving his Corvair on Chase Street in Athens and, desiring to make a left turn onto the North Bypass, came to a stop to await the passing of an oncoming vehicle from the opposite direction. He testified that his blinker signal was on, indicating an intention to make a left turn and that the dash indicator showed it to be working, though he could not see the front or back of the car and say positively that those lights were working. However, he testified that he had purchased the car new only 60 days previously and that it had been driven approximately 2,000 miles. The driver of the oncoming vehicle testified that he did not see any left turn signal on plaintiff's car, and defendant's son (driver of defendant's family purpose car) who approached from the rear testified that he saw no left turn signal.

Defendant's son came onto Chase Street after stopping before entering a short distance from where the collision occurred, struck plaintiff's car in the rear and catapulted it into the pathway of the vehicle approaching from the opposite direction, as a result of which his car was damaged and he suffered a broken hip and leg, bruises and cuts.

Chase Street was a two-lane street, though 44 feet 4 inches in width. Defendant's evidence indicated that plaintiff had pulled over to the right side and then in a sort of an arc turned left and pulled up to the middle of the street before stopping (though plaintiff denied it) and it was contended that this conduct misled defendant's son into believing that plaintiff intended to pull off the road to the right, and then suddenly and without warning pulled back to the left into his pathway. The son testified that he was driving between 20 and 25 miles per hour.

The allegations of negligence were (a) driving at a speed greater than was reasonable and prudent under the circumstances, (b) failure to have the vehicle under control so that a collision with plaintiff's vehicle might have been avoided, (c) driving in excess of 60 miles per hour, (d) following too closely, and (e) failing to keep a proper lookout ahead.

There were demurrers to the petition urging that all of these allegations were mere conclusions without facts alleged supporting them. The demurrers were overruled, and defendant (plaintiff in error) excepts to that ruling.

A verdict for $65,000 was returned and defendant's motion for judgment notwithstanding the verdict and his amended motion for new trial were overruled. He excepts to those rulings.

Erwin, Brichmore & Epting, Eugene A. Epting, Athens, for plaintiff in error.

Rupert A. Brown, Jim Hudson, Athens, for defendant in error.

EBERHARDT, Judge.

1. The rulings on demurrer. The defendant could not admit all of the allegations of this petition and escape liability. The general demurrer was properly overruled. Douglas, Augusta & G. R. Ry. Co. v. Swindle, 2 Ga.App. 550(1), 59 S.E. 600. This we hold though at the conclusion of the evidence plaintiff abandoned the allegation that defendant's car was being operated in excess of 60 miles per hour, there having been no proof of it, and defendant thereupon renewed his demurrers.

It is true that 'the mere fact that one vehicle is struck in its rear, while another is not struck, is not sufficient to fix liability on the driver of either vehicle.' (Hay v. Carter, 94 Ga.App. 382, 384, 94 S.E.2d 755, 757, and that 'a leading vehicle has no absolute legal position superior to that of one following.' Flanigan v. Reville, 107 Ga.App. 382(2), 130 S.E.2d 258. But there were allegations in this petition that go beyond the mere fact that one vehicle struck another from the rear. It is alleged that this occurred after plaintiff had brought his vehicle to a stop awaiting the passing of traffic from the opposite direction, and was caused by a driver who was keeping no proper lookout ahead and who was driving at a speed greater than was reasonable and safe under the circumstances then existing, among them the facts that the pavement was wet and the street a heavily traveled thoroughfare, and that defendant's vehicle struck that of plaintiff with such force as to catapult it out into the lane of approaching traffic. From this plaintiff suffered serious and severe injuries, including a fractured leg.

We find no merit in the special demurrers. All come under the ruling made in Atlantic Co. v. Jones, 86 Ga.App. 515, 521(3), 71 S.E.2d 824, and were properly overruled.

Plaintiff had every right at the close of the evidence to abandon the allegation that defendant's vehicle was being operated in excess of 60 miles per hour. An express abandonment could not, as we see it, adversely affect the defense; rather, it should strengthen...