Rogers v. Johnson

• Decision Date: 21 November 1956
• Docket Number: No. 36119,Nos. 1,2,36119,s. 1
• Citation: 96 S.E.2d 285,94 Ga.App. 666
• Parties: Claude L. ROGERS v. Lucy C. JOHNSON
• Court: Georgia Court of Appeals

Page 285

96 S.E.2d 285

94 Ga.App. 666

Claude L. ROGERS v. Lucy C. JOHNSON.

No. 36119.

Court of Appeals of Georgia, Division Nos. 1, 2.

Nov. 21, 1956.

Syllabus by the Court.

1. The petition containing general allegations of negligence was sufficient as against general demurrer.

2. The rulings on the special demurrers, with one exception, were not error, and the error in overruling that demurrer became harmless when no evidence was submitted in support of the allegations against which it was directed.

3. The evidence supported the verdict and the trial judge did not err in denying the motion for a new trial.

Mrs. Lucy Chafin Johnson filed suit in Taliaferro Superior Court against Claude Lee Rogers claiming damages for the death of her husband, E. W. Johnson, as a result of the collision between an automobile owned by her husband and an automobile and house-trailer owned by the defendant.

The material allegations of the petition are: The plaintiff's suit is to recover the full value of the life of her husband, E. W. Johnson, whose death was caused by the negligence of the defendant, who is a resident of Lawrenceburg, Tennessee, and was operating an automobile with house-trailer attached on the public highways of Georgia at the time of the collision with an automobile belonging to the plaintiff's husband. On January 23, 1953, about 10:30 p. m., the plaintiff's husband was riding in his said automobile which was being operated by Burl Johnson, Jr., at a speed of approximately 40 miles per hour in a westerly direction on U. S. Highway No. 78, traveling towards the City of Washington, Wilkes County, Georgia, on his right-hand of the center line of said highway. The defendant was driving his automobile on said highway in an easterly direction traveling towards the City of Thomson, McDuffie County, Georgia. 'When plaintiff's husband's said automobile reached a point on the right-hand side of said highway, approximately 75 feet from the automobile being operated by the defendant, which had attached thereto a house-trailer of approximately 32 feet in length, defendant had the highway practically blocked and completely blocked to all approaching traffic moving in an opposite direction from which defendant was traveling; that defendant's automobile was approximately 16 feet in length, and together with the trailer attached thereto made a total length of approximately 48 feet; that the highway at this point had a width of 20 feet with shoulders of 6 feet; that defendant was traveling in an easterly direction, and turned his automobile and trailer to the left in order to get to a filling station on the left-hand side of the highway, and in doing so completely blocked the highway to plaintiff and all traffic approaching from the opposite direction of defendant.

'Plaintiff shows that, although the car in which her said husband was riding was being operated in a legal and lawful manner by the said Burl Johnson, Jr., when the defendant's car and trailer turned to the left, entirely blocking his path, it was impossible for Burl Johnson, Jr., to stop the automobile he was driving in time to avoid striking the defendant's vehicle. That the defendant had no lights on his car or trailer that were visible to the said Burl Johnson, Jr., operator of the automobile belonging to plaintiff's husband, and the first notice he had that the highway was blocked by the defendant's car and house-trailer was a dark, black mass entirely blocking the roadway to plaintiff's automobile traveling in the opposite direction. That although he used every effort to avoid striking the defendant's vehicle, Burl Johnson, Jr., was unable to prevent his automobile from colliding with the automobile and house-trailer being operated by the defendant.'

The plaintiff's husband suffered a broken neck from the collision, from which he died a few days thereafter 'solely by and through the negligence of the defendant such negligence of the defendant being as follows: (a) In driving his automobile with the long house-trailer attached thereto to the left-hand side of the highway, across said highway, entirely blocking all traffic approaching from the opposite direction. (b) In failing to have any lights on his car or trailer that would be visible to approaching traffic. (c) In failing to keep a lookout ahead in the direction of travel of cars approaching from the opposite direction, and in failing to observe and heed the highway and traffic conditions. (d) And in failing and refusing to take any reasonable precautions and in failing to exercise any degree of care or diligence to protect other persons traveling on the highway, while driving his automobile and house-trailer from the right-hand side of said highway to the left thereof, entirely blocking said highway as to all traffic approaching from the opposite direction.

'These acts, plaintiff alleges, constituted extreme carelessness and gross negligence on the part of the defendant.'

Pursuant to the provisions of Code, § 68-803 plaintiff elected to bring this action in the county of her residence.

The defendant demurred generally to the petition on the ground that it set forth no cause of action against him. The defendant also demurred specially to subparagraph (a) of paragraph 16 of the petition on the ground that 'no act of negligence by this defendant is alleged in said paragraph, there being no law prohibiting defendant from driving across said highway.' The defendant also filed his answer to the petition, in which he denied that the collision was caused by his negligence and alleged that by the exercise of ordinary care said Burl Johnson, Jr., could have avoided colliding with the defendant's vehicle and that said collision was caused by the negligence of the agent and driver of the plaintiff's husband. The defendant's demurrers to the plaintiff's petition were overruled and the case proceeded to trial.

Dr. Morgan Charles Adair testified for the plaintiff that he treated her husband in Washington, Georgia, for injuries which he received in a wreck on January 23, 1953; that he had a fracture, a dislocation of the fifth cervical vertebra, and was completely paralyzed from the neck down; and that his death certificate, signed by Dr. Louis O. Manganiello, showed the cause of his death to have been excessive temperature with the contributing cause due to a fracture, dislocation of the cervical vertebra with quadrophlegia and cord compression, and complete paralysis of all four extremities.

Burl Johnson, Jr., testified for the plaintiff that he was in the U. S. Army on January 23, 1953, and was visiting his folks in Crawfordville, Georgia. He also testified as follows: 'I saw Mr. Ernest Johnson [plaintiff's husband] on the night of January 23, 1953, at approximately 7 o'clock in the evening when he came to my house to visit. We were first cousins. * * * We went to Floyd Goldman's looking for Frank Hackney and some friends of ours. We found these friends. After we left Court Grounds we went to Washington and from Washington to a club below Washington, the V. F. W. club. The V. F. W. club is three or four miles from the city limits of Washington. We reached the V. F. W. club about 9 o'clock in the evening. Between 7 and 9 we visited friends of ours. We left the V. F. W. club at approximately 10:30. I had alcoholic beverages to drink during the evening. I had one beer before I got to Washington around 7 o'clock and I had a beer and a mixed drink at the V. F. W. club. That was all I had to drink that afternoon. Ernest Johnson drove the automobile to the V. F. W. club and I drove it back home. The car was Ernest Johnson's. As to why I was driving back from the V. F. W. club, we were out together--just dividing up the driving. After we left the V. F. W. club we were en route home. On the way we ran into the side of a house-trailer shortly after we left the V. F. W. club. We were east of Washington when we ran into the house-trailer. I didn't notice it until I was about 20 or 30 feet from it. It looked to me like a big boxcar across the road. There were no lights on the trailer. I was going less than 45 miles per hour. When I came up on the trailer without lights I immediately applied the brakes and pulled sharply to the left. The car and trailer were completely across the highway when I observed it. It was headed to the right of me. It was headed across my driving lane. My driving lane, the right lane, was completely blocked. The entire left lane going into Washington was blocked. That included the shoulder. I struck the trailer on the right rear about the dual wheels, approximately six feet from the end of the trailer. I do not know the exact length of one of those house-trailers; it was one of the big ones. The approximate length was 38 or 40 feet. I didn't know at the time the length of the automobile Mr. Rogers [the defendant] was driving. The way I saw it, I could not get around the trailer to my right. I pulled to the left in order to get off the road to the left. That was my best chance. When I hit the trailer it threw Ernest's head into the windshield and myself into the windshield and we were both knocked out. * * * It was raining or had been raining; it was a dark night and the pavement was damp. * * * I testified that I had two bottles of beer and one mixed drink. I was not drunk. I had complete control of my faculties. I knew exactly what I was doing in driving that car. Mr. Ernest Johnson was not drunk. In my opinion he could have driven the automobile. He was not feeling too well and he had driven down there, so with his permission I drove back.

'I drank one of the beers at Goldman's place. I believe Mr. Ernest Johnson had a beer there, too; I am not sure. We were there over an hour and drank only one beer. We left a little after eight and arrived at the V. F. W. club at approximately 9 o'clock. Between 8 and 9 o'clock we stopped at the Friendville Cafe on the way to the V. F. W....