Hodges v. Pilgrim

• Citation: 88 Ga.App. 256,76 S.E.2d 454
• Decision Date: 13 May 1953
• Docket Number: No. 1,No. 34561,34561,1
• Parties: HODGES et al. v. PILGRIM et al
• Court: United States Court of Appeals (Georgia)

Page 454

76 S.E.2d 454

88 Ga.App. 256

HODGES et al. v. PILGRIM et al.

No. 34561.

Court of Appeals of Georgia, Division No. 1.

May 13, 1953.

Rehearing Denied May 27, 1953.

Syllabus by the Court.

The petition of a minor child, alleging that he was injured when thrown to the ground by the impact of a head-on collision between the automobile on which he was riding and the defendants' automobile, set forth a cause of action, based on the defendant's alleged negligence in passing a parked automobile upon a public highway, and the court did not err in overruling the general and special demurrers to the petition.

James Pilgrim, Jr., by his father as next friend, brought this suit against Allen Hodges and Carolyn Hodges, for damages on account of personal injuries. The plaintiff alleged that, on July 14, 1951, he was sitting on the left front fender of an automobile being driven south on Childers Drive by R. V. Harmon. Childers Drive is a public highway in Fulton County and is 20 feet wide. The plaintiff was then 15 years of age. An automobile was parked against the curb on the east side of Childers Drive. As the car on which the plaintiff was riding approached this parked automobile at 10 miles per hour and reached a point approximately opposite the front of the parked automobile, the defendant, Carolyn Hodges, who was driving a car in the opposite direction (north) on Childers Drive at 30 miles per hour, proceeded to pass the parked automobile on the west side and drove her automobile west of the center line of Childers Drive and onto her left side of the highway. When Harmon saw the defendant attempt to pass the parked automobile, he turned to the right and applied his brakes, but the left front fender of the defendant's car struck the left front fender of Harmon's car, and the impact of the collision caused the plaintiff to be thrown to the pavement and injured.

It was further alleged that the defendant had a clear and unobstructed view of Harmon's car for 300 feet as she proceeded north on Childers Drive, and that she saw Harmon's car for a distance of 300 feet before the impact of the collision. Allen Hodges, the husband of Caroyln Hodges, was alleged to have furnished and maintained for her benefit and convenience, the automobile driven by his wife as a family car, with his permission, and he was made a defendant to the suit.

It was alleged in paragraph 16 that Harmon's car was proceeding on the right side of the road, in compliance with the law of Georgia, and that the defendant failed to grant the right of way to Harmon's vehicle as it approached along said road; and, in paragraph 17, that the defendant failed to warn Harmon of her approach by horn or otherwise, or to slow her vehicle or stop it before passing the parked automobile; and, in paragraph 19, that the defendant was attempting to pass the parked automobile when the way ahead was not clear of approaching traffic and when the width of the road was insufficient to aloow her car to pass the parked automobile and at the same time to keep to the right of the center of the highway, which was in violation of the laws of Georgia; and, in paragraph 20, that the defendant was negligent, (a) in suddenly driving from behind the parked automobile over and onto the left side of the highway and into the car on which the plaintiff was riding; (b) in failing to warn the plaintiff or Harmon of her intention to pass the parked automobile; (c) in attempting to pass the the parked automobile when the way ahead was not clear of approaching traffic, and when the width of the road was insufficient to allow her automobile to pass the parked automobile and at the same time keep to the right of the center of the highway, which was negligence per se; and (d) in failing to keep to the right of the center of the highway so as to allow the automobile on which the plaintiff was riding to pass without interference, which was negligence per se.

The defendants filed a general demurrer to the petition on the ground that it set forth no cause of action, and demurred specially to paragraph 16, on the ground that yielding of the right of way applies only at highway intersections, and that it is not alleged that the collision was at an intersection; and to paragraph 17, on the ground that there was no allegation that it was necessary for Carolyn Hodges to warn the plaintiff of her approach or to stop before passing the parked automobile, as the petition shows that Harmon was able to see the defendant unless his view was cut off by the presence of the plaintiff on the front of his car; and to paragraph 19, on the ground that the petition shows that Harmon's car was 300 feet away, and that the way ahead was clear of approaching traffic, and also on the ground that, under the facts alleged, no violation of law was set forth; and to subparagraph (a) of paragraph 20, on the ground that it was contradictory of the allegations of the petition; and to subparagraph (b) of paragraph 20, on the ground that a warning was unnecessary, because it is not alleged that the plaintiff did not see the defendant's automobile, or that he needed any warning, or that such warning would have prevented the collision; and to subparagraph (c) of paragraph 20, on the ground that the allegations show that the way ahead was clear of approaching traffic, and so that there was no violation of law amounting to negligence per se; and to subparagraph (d) of paragraph 20, on the ground that there was no reason for the defendant to keep to the right of the center of the highway, as the plaintiff's automobile was 300...