Minnick v. Jackson
| Decision Date | 21 March 1941 |
| Docket Number | 28708. |
| Citation | 13 S.E.2d 891,64 Ga.App. 554 |
| Parties | MINNICK v. JACKSON. |
| Court | Georgia Court of Appeals |
Cumming Harper & Nixon, of Augusta, for plaintiff in error.
Pierce Bros., of Augusta, for defendant in error.
Charles Jackson, by and through his next friend, John B. Reel recovered in an action for damages for personal injuries against J. H. Minnick. The defendant excepted to the overruling of his motion to strike an amendment to the petition, to the overruling of his demurrer to the petition as amended and to the overruling of his motion for new trial.
The defendant contends that the original petition failed to set out a cause of action, in that it showed that the plaintiff's injuries were caused by his failure to exercise ordinary care for his own safety, therefore there was nothing to amend by. With this we can not agree. The original petition disclosed that at about 10 o'clock on the night of January 21, 1940, the defendant was driving and riding in an International truck loaded with mules, in a southerly direction along the Savannah Road, one of the main streets entering the city of Augusta, from the south. Upon reaching the Smith Stockyards in the southern part of the City of Augusta, he drove said loaded truck off the paved street to right and west side of said street, or road. He proceeded along said western side in a southerly direction parallel with said street until he reached a point about 40 feet north of the intersection of said street with the Augusta Belt Line Railroad. Then he carelessly and negligently cut said truck sharply to the left and immediately to the east across said street entirely blocking said street, which was about 20 feet in width, and unreasonably obstructing and impeding your petitioner's right of travel along said street, who was then and there driving in a northerly direction to the east of the center line of said paved street, at a rate of speed not in excess of 30 miles per hour; that it was then the duty of the defendant to give plaintiff one-half of said road but he failed so to do. The defendant's truck was 25 feet long with a closed cab over the driver's seat, and immediately back of the cab was a boxed up truck 8 feet high over the chasis which contained the mules. The defendant blocked the highway and failed to display lights or signals on truck or give plaintiff any warning thereof. It was further alleged that said action by defendant was in violation of four distinct ordinances of the City of Augusta, which were set forth in the petition. "That the place on said Savannah Road where said J. H. Minnick drove his truck in an easterly direction across said street was neither an intersecting street, nor an alley, nor was it a safe, nor fit, nor proper place to turn across said street, in front of your petitioner; that at the time in question your petitioner was driving a light International pick-up truck along the east side of said paved street in a northerly direction, and upon observing said truck which was being driven by said defendant, it was across and to the right and east side of the center line of said street and pointing in an easterly direction, whereupon petitioner immediately applied his brakes and pulled his truck to the right and east side of the street, but because of his nearness to said truck upon said eastern side of said street and across the same, he was unable to stop his truck before the front end of it struck the right front side of said Minnick's truck at a point about opposite the right front wheel, wrecking his truck and shattering the windshield." It was further alleged that the plaintiff was without fault and in the exercise of all ordinary care and caution and in no wise contributed to the injuries sustained by him. Then certain injuries and damages were set forth.
A petition seeking to recover damages on account of alleged negligence should not be dismissed on the ground that the plaintiff could by the exercise of ordinary care have avoided the consequences of the negligence alleged unless the petition discloses facts demanding such a conclusion as a matter of law. Collins v. Augusta-Aiken Railway & Electric Corporation, 13 Ga.App. 124(2), 78 S.E. 944. Every case of this character in its last analysis must be determined upon its own facts, and we think the instant petition was not fatally defective as failing to state a cause of action. It sufficiently avers negligence on the part of the defendant, and does not as a matter of law disclose such negligence or want of care on the part of the plaintiff as to bar a recovery. Mann v. Central of Georgia Railway Company, 43 Ga.App. 708, 710, 160 S.E. 131. The instant petition plainly, fully and distinctly set forth facts sufficient to inform the defendant of the grounds of complaint, to enable the jury to find an intelligible and complete verdict, and to enable the court to declare distinctly the law of the case. See Ingram's Georgia Pleading and Practice, 201, § 148. We therefore think that the original petition was not subject to demurrer, set forth a cause of action and the judges did not err in allowing the amendment.
The plaintiff amended the original petition by adding that the defendant failed to warn the plaintiff that he was about to cross from the west to the east side of the said street and when plaintiff reached a point about 75 or 80 feet from the railroad crossing, he applied his brakes and slackened his speed in order to ascertain if a train was approaching and if the crossing was clear, and upon ascertaining that it was clear he released his brakes, applied the gas and increased his speed, and when he was in the act of driving off of the crossing, there came within the range of his vision for the first time the defendant's truck which had crossed over the center line, and upon seeing said truck for the first time, plaintiff immediately applied his brakes and pulled to the right seeking to avoid a collision, but he was unable to do so. He further alleged that his truck was properly equipped with two head lamps and brakes but he was unable to stop before striking the front of the defendant's truck. "That when said Minnick's truck came within the range of your petitioner's vision, it appeared to petitioner that there might possibly be a sufficient distance between the front end of Minnick's truck and a telegraph or light pole which sat at the eastern edge of the pavement of said street, through which your petitioner could pass without striking Minnick's truck or the pole, and the distance being so short between petitioner and defendant, petitioner knew he would be unable to stop and pulled to his right with a view to passing between defendant's truck and the pole, but the space was either insufficient, or the said Minnick closed in said area by continuing eastward, and your petitioner was unable to avoid running into the front right side of defendant's truck;" that under a city ordinance it was the defendant's duty to place a light on truck clearly discernible 200 feet ahead in order to give petitioner notice he was stopping upon the highway, but that defendant failed to so do.
The defendant renewed his demurrer to the petition as amended on the ground that as thus amended it set forth no cause of action and shows that the injuries for which plaintiff seeks to recover were caused solely by the negligence or want of ordinary care on the part of the plaintiff.
"Where a person traveling along a highway in an automobile receives injuries from a collision between his automobile and one parked on a bridge in the highway, he fails to exercise ordinary care to avoid the injuries and is guilty of negligence which proximately causes the injuries, if he could have seen the parked automobile in time to bring his own automobile under control and avoid the collision." State Highway Department v. Stephens, 46 Ga.App 359(1), 167 S.E. 788, 789. In that case the petition alleged that the defendant's automobile was parked on a bridge in a highway and when the plaintiff rounded a curve on the highway about the noon hour, in the daytime, he observed the defendant's automobile on the bridge, but when he ascertained that the defendant's automobile was not moving it was too late to stop. It clearly appears that there the injuries were caused by the failure of the defendant to exercise proper care. Fraser v. Hunter, 42 Ga.App. 329, 156 S.E. 268. In Baker v. Atlantic Coast Line Railroad Company, 52 Ga.App. 624, 184 S.E. 381, where the plaintiff was driving at night and had adjusted the head lamps on his automobile so that the beams of light were lowered and widened, illuminating the sides and surface of the road so that he could better see animals along the highway, this court held that: ...
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