Horton v. Sanchez

• Decision Date: 05 February 1938
• Docket Number: No. 26626.,26626.
• Parties: HORTON . v. SANCHEZ.
• Court: Georgia Court of Appeals

57 Ga.App. 612

195 S.E. 873

HORTON .

v.SANCHEZ.

No. 26626.

Court of Appeals of Georgia,

Division No. 2.

Feb. 5, 1938.

Rehearing Denied March 23, 1938.

Syllabus bp the Court.

Under the allegations of the petition neither count set forth a cause of action against the defendant, and the court did not err in sustaining the general demurrer.

Error from Superior Court, Putnam County; James B. Park, Judge.

Personal injury action by N. D. Horton against A. S. Sanchez. To review a judgment sustaining a general demurrer to the petition, plaintiff brings error.

Affirmed.

N. D. Horton brought suit against Dr. A. S. Sanchez in two counts, the first count alleging that on the night of October 30, 1936, the defendant requested the plaintiff to accompany him to a point on the Eatonton-Madison highway for the purpose of assisting the defendant in bringing in some injured person, it being understood that as soon as plaintiff's services were not required he would be returned by the defendant to the plaintiff's place of business; that the defendant directed the plaintiff to enter the defendant's automobile and plaintiff accompanied him to a point on said highway about one mile from the Eatonton courthouse;. that, after arriving at said place, he was directed by the defendant to get out of the latter's automobile and to proceed to a wrecked car and determine if any injured persons were therein, and that he followed such instructions and while at said wrecked car and carrying out the orders of the defendant he was called by the defendant and directed to return to the defendant's automobile, being informed by the defendant that he was leaving the scene; that he started back to the defendant's car, which was on the opposite side of the road from the plaintiff, but before he reached the opposite side of the road the defendant, without warning and without notice to the plaintiff, drove his car across and to the center of the highway, stopping the car and, opening the door thereof, commanded the plaintiff to enter the car; that the defendant stopped suddenly in the middle of and across the highway without holding out his hand or giving any warning to those driving cars directly behind or on the side of him, thus making it practically impossible for the operator of a car in close proximity to the side or rear of the defendant's car to avoid a collision, and causing the car of one Califf to run into defendant's car and to injure the plaintiff: that at the time the defendantstopped his car, after driving it to the center and across the highway, the plaintiff was even with and directly in front of the car door which had been opened by the defendant; that, on the instructions of the defendant, he entered the car and seated himself, but that before he had time to get his right leg in the automobile the car driven by the said Califf struck the defendant's automobile, knocking the door against the plaintiff's head and right leg and, due to the gross negligence of the defendant, as set out in the petition, the plaintiff was injured in certain particulars; that before the plaintiff was injured there had been placed in the defendant's car one Ernest Wilson, who was injured, and who was the person the defendant had requested the plaintiff to help him with; that the plaintiff is not a physician and, being a layman, did not have any way to know the seriousness of Wilson's injury, but that the defendant, a physician, could and did know that the said Wilson was not injured in such a way as to make it necessary for the defendant to commit any of the grossly negligent acts which he committed; that the plaintiff thought and had reason to believe that the said Wilson was injured severely and that it was necessary to rush him to a hospital, and that the loss of time might mean the death of Wilson; that the plaintiff saw where Wilson had bled profusely and plaintiff thought he was severely injured and in a dying condition; that the Eatonton-Madison highway, where the plaintiff was injured, is a state highway, and that the defendant knew that he was on a highway where traffic was unusually heavy and that he was parking his car on a curve where it could not be observed by other drivers at any reasonable distance; that the defendant disregarded the fact that it was about 10 o'clock at night and dark, and that he parked his car in such a position on said highway that none of his lights could be seen by others driving automobiles and approaching and traveling on said highway; that the plaintiff left his place of business for the purpose of assisting the defendant and acted under his command from the time he first entered the defendant's automobile until he was injured; that, had defendant not been grossly negligent, the car of Califf would not have struck the defendant's car, and that the striking of the defendant's car by Califf's car was caused by the defendant's disregard of the right of others to the rights of the road; that neither the front lights nor the taillight were visible for a distance of 100 feet from the car of the defendant and that his car was parked less than 8 feet from the center line of said highway, contrary to the laws of this state; that the said Califf came from the rear right side to the right of the defendant's car and caught the extended leg of the plaintiff between his car and that of the defendant, resulting in the described injuries to the plaintiff; that Califf's act in trying to pass from the rear right side of the defendant's car to its right side was caused by the emergency created by the defendant in so stopping, and that the injury complained of was caused by the gross negligence of defendant in stopping his automobile suddenly and without warning in the middle of the highway on a curve and in a position where his rear light could not be observed for a distance of 100 feet at the hour of 10 o'clock; that the plaintiff was placed in such a position by defendant tha^f he could enter the latter's car much more quickly than he could have turned back because the car was parked in such a position that on its door being opened by the defendant the plaintiff was placed in a position where it would have been necessary for him to have advanced several steps towards the car of Califf before he could have been in a position to go around defendant's car, and that these acts created such an emergency that it caused him to act quickly and without time for thoughtful reasoning; that, after plaintiff was commanded to return to the defendant's car, and after he had started across the pavement of the highway, the defendant, in driving his car to the center of said pavement of said highway, focused the lights of his car on the plaintiff, blinding him and causing him to be on the pavement of the highway blinded from the lights of defendant's car and it being impossible for plaintiff to see other cars on the highway, and that after the lights of defendant's car were focused away from the plaintiff several seconds were required for his eyes to dilate sufficiently to see objects again, and that, before his eyes had dilated so that he could see, the defendant had stopped his car as aforesaid and had commanded the plaintiff to enter the same; that the plaintiff did not have any way of knowing that the defendant intended to focus the lights on him, and that plaintiff had entered on the said pavement before such focusing of the lights, and that defendant knew that by focusing the lights on plaintiff the latter would be blinded and placed in a dangerous position; that the defendant could see traffic on the highway and had every means of knowing that he was parking his car in the center ofthe paved highway, whereas the plaintiff did not know and could not see the position of defendant's car, for the reason that he was blinded as aforesaid; and that at the time the defendant called to plaintiff, commanding him to return to the car, the plaintiff was given the assurance of safety by the defendant. The petition also set forth allegations as to the plaintiff's injuries, expenses, and loss of earning capacity, alleged specific acts of negligence of the defendant, and prayed for judgment.

Count 2 contained allegations similar to those of count 1 except that the plaintiff alleged that on the occasion in question he was invited by the defendant to accompany him to the place where he had been summoned to render aid to an injured person, charged gross negligence against the defendant, enumerating the same acts of negligence as specified in count one. The defendant filed general and special demurrers. The court, without passing on the special demurrers, sustained the general demurrer on the ground that neither...