John Deere Plow Co. v. Johnson
| Decision Date | 09 July 1958 |
| Docket Number | 37172,No. 1,37173,Nos. 37171,s. 37171,1 |
| Citation | 105 S.E.2d 33,98 Ga.App. 36 |
| Parties | JOJHN DEERE PLOW COMPANY v. Virginia M. JOHNSON et al. SOUTHEASTERN FAIR ASSOCIATION v. Virginia M. JOHNSON et al. H. C. JONES v. Virginia M. JOHNSON et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
The plaintiff's petition as finally amended failed to set forth a cause of action against the demurring defendants.
Mrs. Virginia M. Johnson sued the City of Atlanta, the Southeastern Fair Association, John Deere Plow Company, and H. Candler Jones trading as Quality Farm Supply Company for injuries allegedly sustained when she was struck by a tractor while sitting on a bench at the Southeastern Fair. The plaintiff's petition as finally amended, was in two counts, one alleging that the defendants were negligent in leaving the tractor, which was on display, in a condition where some child or children, unknown to the plaintiff, could start it in motion so that it would run over the plaintiff, and the other count alleging that the defendants were negligent in leaving the tractor so that it could start of its own motion and run over the plaintiff. The defendants, Southeastern Fair Association, John Deere Plow Company and H. Candler Jones, filed general and special demurrers to the plaintiff's petition as finally amended. These demurrers were overruled in separate judgments by the trial court and each of these defendants, in separate bills of exceptions, assign error on the judgment adverse to it.
John D. Jones, Greene, Neely, Buckley & DeRieux, Atlanta, for John Deere Plow Co.
John H. Hudson, Wm. R. Hudson, Atlanta, for defendants in error.
Palmer H. Ansley, Smith, Field, Doremus & Ringel, Atlanta, for Southeastern Fair Ass'n.
T. J. Long, Ben Weinberg, Jr., Atlanta, for H. C. Jones.
1. The first count of the plaintiff's petition is based on the theory that the defendants displayed the tractor in such a way that it could start of its own motion and run over the plaintiff.
Chalverus v. Wilson Mfg. Co., 212 Ga. 612(1), 94 S.E.2d 736, 737.
The petition does not allege whether the place where the tractor was displayed was level or sloping, or whether the engine on the tractor was running, and it must be assumed, when considering the allegations of the petition as against general demurrer, that such place was level and that the engine was not running. Therefore, the tractor could not begin to move without some external force being applied or without something being done to set the running gear of the tractor (the engine) in action, and no such action on the part of anyone is alleged in this count of the petition. The courts are bound to take judicial cognizance of physical laws, Rome Ry. & Light Co. v. Keel, 3 Ga.App. 769, 60 S.E. 468; Lamar Electric Membership Corp. v. Carroll, 89 Ga.App. 440, 458, 79 S.E.2d 832; and Reynolds v. Mion & Murray Co., 93 Ga.App. 37, 40, 90 S.E.2d 593. Since the allegations that the tractor struck the plaintiff do not aid the allegations of the petition which are contrary to physical laws, and since the doctrine of res ipsa loquitur does not aid pleadings (Eaton v. Blue Flame Gas Co., 91 Ga.App. 510(2), 86 S.E.2d 334), this count of the plaintiff's petition failed to set forth a cause of action against the defendants, and the...
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...it is in direct conflict with a prior holding of this court which has been affirmed by the Supreme Court. See John Deere Plow Co. v. Johnson, 98 Ga.App. 36, 37(1), 105 S.E.2d 33, aff'd. on this point in 214 Ga. 645, 106 S.E.2d 901. A trailer will roll when set in motion by any number of for......
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...an inference unfavorable to the party claiming a right may be fairly drawn from them, such inference will prevail. John Deere Plow Co. v. Johnson, 98 Ga.App. 36, 105 S.E.2d 33. Accordingly, where the petition alleges that an oral contract was entered into between the parties 'on or about No......
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...generally Roach v. Dozier, 97 Ga.App. 568, 103 S.E.2d 691; Graham v. Cleveland, 58 Ga.App. 810, 200 S.E. 184; John Deere Plow Co. v. Johnson, 98 Ga.App. 36(2), 105 S.E.2d 33; Bell v. Adams, 111 Ga.App. 819, 143 S.E.2d Judgment reversed. FELTON, C.J., and FRANKUM, J., concur. ...
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Johnson v. John Deere Plow Co.
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