Opinion
37164.
DECIDED JUNE 23, 1958. REHEARING DENIED JULY 10, 1958.
Tort; automobile and truck collision. Baldwin Superior Court. Before Judge Carpenter. April 3, 1958.
Erwin Sibley, for plaintiff in error.
Milton F. Gardner, Isaac S. Peebles, contra.
The judge did not err in overruling the general demurrer to the petition.
DECIDED JUNE 23, 1958 — REHEARING DENIED JULY 10, 1958.
J. M. Nunn filed a suit against Frank Broadnax for damages arising out of a collision between an automobile driven by the defendant and a truck driven by the plaintiff.
The petition alleged in part: "That there is a public highway leading from the town of Mitchell, Georgia, in Glascock County, to Agricola in said Glascock County, going in a southern direction from the town of Mitchell, and known as State Highway Number 102; that a short distance from the southern limits of said town of Mitchell, Georgia Highway No. 102 passes in front of the home of A. C. Pulleam; that there is another highway maintained by said Glascock County, which has been paved and crossed said State Highway No. 102 at an angle of about 30° and proceeds at an angle with said Highway No. 102 into said town of Mitchell, both of said roads leading from the town of Mitchell and intersecting in front of said Pulleam home. Said county road is paved to the intersection with said Highway No. 102 but after same crosses said Highway No. 102 it is an unpaved public county road; there is a center line marked on said Highway No. 102 and the paved portion of same being approximately twenty-two (22) feet wide; that about 2:15 o'clock, p. m. on October 20, 1955, plaintiff was driving his one-half ton Studebaker truck along said dirt portion of said county road approaching its intersection with said Highway No. 102 intending to cross said Highway No. 102 and proceed along the paved portion of said county road going into said town of Mitchell, Georgia; that some 50 or 60 feet from said Highway No. 102, on the dirt portion of said county road was and is a stop sign indicating that persons travelling on said dirt portion of said county road should stop before entering the intersection of said Highway No. 102 with said county road; that when plaintiff reached said stop sign he brought his said truck to a complete stop and looked in both ways and seeing the highway clear of traffic, he proceeded in said truck and had gotten the major portion of his truck over the center line of said highway with his truck pointing down the paved portion of said county road when suddenly and without any warning the defendant traveling along said Highway No. 102 at a high and dangerous rate of speed, drove along said highway No. 102 and instead of staying on his right-hand lane of said Highway No. 102 he became rattled and in a reckless manner pulled his automobile on his left-hand lane, which was petitioner's right-hand lane, and collided his Pontiac automobile into the driver's side of petitioner's truck, knocking same around and throwing plaintiff on the ground and knocked plaintiff's truck across said Highway No. 102 into the unpaved portion of said county road; that the defendant was thoroughly familiar with said road situation and in traveling from the southern limits of Mitchell, Georgia, toward said intersection of said two roads, he was going upgrade and his car was hidden from the view of plaintiff on account of the grade in said highway and the defendant well knowing the condition of said highway, drove his automobile into plaintiff's said truck at a high and dangerous rate of speed, knocking it completely around and throwing plaintiff out on the side of said highway and into the yard of said Pulleam residence; that in all matters herein complained of plaintiff was without fault but solely defendant's negligence in failing to keep his automobile under control at said intersection and he could have avoided striking petitioner's truck and causing said collision."
The defendant's general demurrer was overruled, and to this ruling exception is taken.
Counsel for the defendant insists that the petition fails to show that the defendant violated any legal duty he owed the plaintiff, and the judge erred in not sustaining the general demurrer. The petition alleged: that the plaintiff stopped and ascertained that Highway No. 102 was clear of traffic and then proceeded to cross the same; that the defendant, driving at a high and dangerous rate of speed struck the plaintiff's vehicle after the larger portion of it had crossed the center line; that the collision was due to the defendant's negligence in failing to keep his automobile under proper control. While the petition may have been subject to special demurrer, as against a general demurrer, it set forth facts sufficient to present a jury question as to whether the defendant negligently failed to keep his automobile under proper control and whether this negligence was the proximate cause of the collision. Southeastern Express Co. v. Nightingale, 33 Ga. App. 515 (3) ( 126 S.E. 915); Atlantic Co. v. Jones, 86 Ga. App. 515, 521 ( 71 S.E.2d 824).
While it is true the defendant was traveling an upgrade and would not have been able to see the plaintiff until he reached the crossing, this did not relieve the defendant of the duty to keep his vehicle under proper control at all times. Code (Ann.) § 68-1626 (a, c).
The judge did not err in overruling the general demurrer to the petition.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.