Allgood v. Butler

88 Ga. App. 231 (1953)

76 S.E.2d 437

ALLGOOD et al. v. BUTLER.

34619.

Court of Appeals of Georgia.

Decided May 15, 1953.

*233 Ferdinand Buckley, Marshall, Greene, Baird & Neely, for plaintiffs in error.

Zack D. Cravey, Jr., contra.

*234 CARLISLE, J.

1. "Questions of negligence, proximate cause, and failure to exercise ordinary care in avoiding the consequences of another's negligence, etc., are all questions of fact, properly for determination by a jury under appropriate instructions as to the applicable principles of law; and it is only in plain and indisputable cases that the court as a matter of law will determine them . . . [citations]. It is true that where an injury is the result of the plaintiff's own negligence, or where the plaintiff fails to exercise proper care for his own safety on discovering the negligence of the defendant, or where by the exercise of ordinary care he could have apprehended the defendant's negligence, he cannot recover; but even though the plaintiff was negligent in some manner, where the defendant's negligence caused the injury and was of a greater degree than plaintiff's, the plaintiff could still recover, although his recovery would be diminished in the proportion his negligence compared with the negligence of the defendant. However, where the negligence of the plaintiff and the defendant are equal, or the negligence of the plaintiff is more than that of the defendant, the plaintiff could not recover. See Rogers v. McKinley, 48 Ga. App. 262 (172 S. E. 662). Ordinarily these are all questions of fact for the jury. *232 It is to be remembered that a plaintiff is not required to allege facts showing that he exercised due care for his own safety, or that the injury was not the result of his own negligence; but his petition is sufficient to withstand a general demurrer where it alleges that his injury was the result of defendant's negligence, setting forth facts from which the jury might find that the defendant was negligent. However, if the facts alleged by the plaintiff affirmatively show that after discovering the negligence of defendant, or if the same could have been apprehended by the exercise of ordinary care upon plaintiff's part, plaintiff failed to exercise due care to prevent the consequences of defendant's negligence, that is, failed to exercise ordinary care for his own safety, the plaintiff could not recover." Pollard v. Heard, 53 Ga. App. 623 (186 S. E. 894).

2. Under an application of the foregoing principles of law to the allegations of the present petition, the truth of which is assumed as against general demurrer, the trial court did not err in overruling the defendant's joint general demurrer. The petition shows that the defendants were negligent as a matter of law. The defendant Allgood's truck and trailer, loaded with a bulldozer, was proceeding north on Peters Street in the City of Atlanta. The bulldozer blade extended two feet on each side of the eight-foot trailer. The extreme ends of the blade were not marked with red flags, as is required of vehicles carrying loads which extend more than one foot to either side of the vehicles under a valid city ordinance existing at the time; and the total width of the trailer and its load exceeded 96 inches, in violation of Code (Ann. Supp.) § 68-405. The plaintiff's wife was driving behind the Allgood vehicle, which was in the outside lane of Peters Street. As the Allgood vehicle stopped for a red light at the intersection of Peters Street and West By-Pass Expressway, the plaintiff's wife drove his car into the inside lane of Peters Street alongside the trailer, and the extended bulldozer blade tore into the right side of the plaintiff's car, causing enumerated injuries. Whether the plaintiff's wife was also negligent in striking the extended blade as she drove alongside the trailer, and if negligent, the degree of her negligence, are questions of fact for the jury. It does not affirmatively appear from the petition that in the exercise of ordinary care she should have discovered the unmarked blade extending two feet from the body of the trailer as she was driving alongside the trailer, so as to have avoided the consequences of the defendants' negligence, and this is so even under a construction of the petition most strongly against the pleader, as it does not appear that the blade was within the range of her vision at the time the plaintiff's car struck the blade. The damage to the plaintiff's car was to the right-hand door and the surrounding area, opposite the driver's seat.

3. The plaintiff proved his case substantially as laid. The damages awarded by the court were well within the range of the proof, and the court, sitting without the intervention of a jury, resolved the question of negligence, proximate cause, comparative negligence, etc., under the evidence, and this court will not, therefore, disturb the judgment.

Judgment affirmed. Gardner, P. J., and Townsend, J., concur.