Smith v. Hodges

• Decision Date: 13 November 1931
• Docket Number: No. 21262.,21262.
• Citation: 161 S.E. 284,44 Ga.App. 318
• Parties: SMITH . v. HODGES.
• Court: Georgia Court of Appeals

44 Ga.App. 318

161 S.E. 284

SMITH .

v.HODGES.

No. 21262.

Court of Appeals of Georgia, Division No. 2.

Nov. 13, 1931.

Syllabus by the Court.

The petition alleged that the plaintiff's injuries were caused by the gross negligence of the defendant with whom and in whose automobile the plaintiff was riding as an invited guest, and this court cannot hold as a matter of law that the specific facts pleaded would be insufficient to support an inference of such negligence. The petition set forth a cause of action, and the court erred in sustaining the general demurrer.

Error from Superior Court, Fulton County; John D. Humphries, Judge.

Action by Rebecca Smith against O. E. Hodges. Suit was dismissed on general demurrer, and plaintiff brings error.

Reversed.

The suit of Rebecca Smith against O. E. Hodges was dismissed on general demurrer, and the plaintiff excepted. The petition alleged that the plaintiff was injured while riding as a guest of the defendant in an automobile, and the sole question for decision is whether the allegations were sufficient to show, as against a general demurrer, that the defendant was guilty of gross negligence in the manner in which he operated the vehicle.

The following are the allegations to be considered:

"3. On the night of May 17, 1930, between the hours of 10 and 11 o'clock p. m., plaintiffwas an invited guest of the defendant in the automobile of the defendant and was riding in said car with the defendant.

"4. The defendant was proceeding along the north side of Ponce de Leon Avenue between Myrtle Street and Piedmont Avenue and was going in a westwardly direction. Defendant was driving and operating his automobile.

"5. Near the middle of Ponce de Leon Avenue on the north side of said street, near its Intersection with Piedmont Avenue, there is a concrete 'isle of safety' which is a platform made of concrete, rising about a foot above the level of the street and used by the public to wait for, board and alight from street-cars. Said platform has a concrete and steel pillar at its east end about 8 feet high, and on said pillar there are two lights, one at the top and one about eighteen inches from the ground, and at the intersection of Piedmont Avenue and Ponce de Leon Avenue there is a street-light, and said isle of safety or loading platform is clearly visible at all times. The street lights and the lights on said platform were burning and were clearly visible at the time of the accident.

"6. The defendant with gross negligence and lack of any care drove his automobile into the east end of said platform and struck said platform with the front end of his automobile.

"7. Plaintiff alleges that the action of the defendant in driving his car into the said concrete platform or isle of safety was grossly negligent and constituted gross negligence, and that defendant exercised no degree of care whatsoever for plaintiff's safety."

Mitchell & Mitchell, of Atlanta, for plaintiff in error.

Slaton & Hopkins, of Atlanta, for defendant in error.

BELL, J. (after stating the foregoing facts).

It is our opinion that the court erred in sustaining the general demurrer and dismissing the petition. The proposition would hardly be debatable if the petition had contained mere general averments of negligence, with no statement of facts either to support or dispute such conclusions, since it appears to be settled that "mere general averments of negligence are sufficient as against a general demurrer." Hudgins v. Coca Cola Bottling Co., 122 Ga. 695 (1), 50 S. E. 974; Kemp v. Central of Georgia By. Co., 122 Ga. 559 (4), 50 S. E. 465; Stewart v. Greene, 124 Ga. 975 (1), 53 S. E. 450; Pullman Palace Car Co. v. Martin, 92 Ga. 161, 18 S. E. 364; Fuller v. Inman, 10 Ga. App. 680 (4), 74 S. E. 287. But it appears from the petition as a whole that the allegations of negligence are referable to and based upon specific facts stated, and in such a case a conclusion of the pleader can have no greater weight than the pleaded facts up on which it is predicated, and must fail even on general demurrer, unless supported by the particular facts alleged. Banks v. Schofleld's Sons Co., 126 Ga. 667, 671, 55 S. E. 939; Seaboard Air-Line Railway v. Shigg, 117 Ga. 454, 43 S. E. 706; Central of Georgia Ry. Co. v. Moore, 5 Ga. App. 562 (1), 564, 63 S. E.-642; Western Union Tel. Co. v. Harris, 6 Ga. App. 260 (2), 64 S. E. 1123; Dowman-Dozier Mfg. Co. v. Central of Georgia Ry. Co., 29 Ga. App. 187 (1), 114 S. E. 815. So the question here is whether the facts shown by the petition would authorize an inference of gross negligence on the part of the defendant; it being necessary that the plaintiff should establish this degree of negligence to be entitled to a...