The petition sufficiently alleged the negligence of the defendant, but set forth no cause of action because it affirmatively revealed that the deceased did not exercise ordinary care to avoid such negligence after the same could have been discovered by the exercise of ordinary care on his part.

DECIDED DECEMBER 16, 1957.

Mrs. W. C. Brown brought suit against the Atlanta Gas Light Company for the full value of her son's life.

The original petition alleged in substance that: at approximately 8 a. m. on or about January 25, 1955, the plaintiff's minor son was driving a G. M. C. dumptruck at approximately 25 miles per hour, approaching the location of an excavation made by the defendant, from the north, driving in a southerly direction on the west side of the street, and he died of crushing and suffocation when the dumptruck he was driving struck a pile of dirt on Kennesaw Avenue and turned over into the excavation, partially pinning his body underneath the steel body of the truck on account of the negligence of the defendant, as will be more particularly set forth hereinafter; the defendant was laying a gas line on Kennesaw Avenue about three-fourths of a mile north of the City of Marietta, Georgia, and had opened the street on the west side for the purpose of installing or repairing its gas line. Kennesaw Avenue is a public street of the City of Marietta, and is 23 feet wide and paved with concrete at this point; the plaintiff's son was unfamiliar with the location of the dirt pile and excavation as he traveled in that direction; approximately 400 feet north of the excavation and dirt pile, there is a curve in the street, and it is impossible for a person approaching the excavation and dirt pile from the north to see them; there was nothing in the street as the plaintiff's son approached the dirt pile from the north, traveling in a southerly direction, to warn him that such conditions existed in the street. In addition to piling the dirt into the street, the defendant had accumulated loose dirt on the concrete street for a distance of approximately 100 feet from the point of impact back northerly; the deposit of loose dirt on the pavement was thicker on the right-hand side of the road where the right-hand wheels of the plaintiff's son's vehicle were traveling than on the left-hand side of the right half of the road where the left wheels of the vehicle were traveling; the loose dirt on the pavement, which was between the tires of the vehicle and the concrete pavement, caused the vehicle to skid toward the dirt pile, and the accumulated loose dirt threw the vehicle into the dirt pile and then into the ditch excavated by the defendant. The plaintiff's son was thrown from the truck at the point and time of the impact and under the truck as it turned over and caused his death. The ditch into which the truck in which the plaintiff's son was driving was located on the west side of Kennesaw Avenue between the sidewalk and curb line, and the defendant had excavated dirt from the area, commonly referred to as a grass plot, to make the ditch in which to lay its gas pipe or to make repairs to its existing line; and, in making the excavation the defendant negligently and carelessly piled dirt almost over the entire street and in such a manner as to cause the truck driven by the plaintiff's son to be wrecked and pin him beneath it, leaving him partially buried under dirt and gravel with his face downward in the dirt. The defendant was laying the gas line in the prosecution of its normal business and its acts were done by agents, servants, and employees whose names are unknown to the plaintiff but are well known to the defendant, and these agents, servants and employees were acting within the scope of their authority; the plaintiff's son did not know of the hazard and danger caused by piling the dirt into the street, and had no warning that it would cause his truck to be wrecked in the manner described; the plaintiff's son was unmarried and did not leave a wife or children surviving him; the defendant was negligent in the circumstances resulting from its piling dirt in the street and in causing the death of the plaintiff's son, and the defendant failed to use ordinary care and diligence for the safety of the persons using the street while the gas line was being installed as the street was open to the public on that date. The defendant was negligent in the following particulars: In piling the dirt in the street in the path of that portion of the street — the right-hand side of the west side thereof — which was being traveled by the plaintiff's son; in throwing dirt over almost the entire surface of the street instead of concentrating it in one pile; in failing to place any barriers, barricades, torches, or red flags, or other warning devices of any kind around the dirt and ditch, or the approaches thereto, to warn the plaintiff's son and other persons using the street that such hazard was present; in failing to warn the plaintiff's son of the danger of the dirt and ditch in the street; in violating Chapter 23, § 14, of the Marietta City Code, which provides as follows: "No person shall in any way remove, dig into or tear up any portion of any paved street or sidewalk of the city for any purpose other than for laying drains of sewers under the supervision and control of the board of lights and waterworks without first obtaining a permit from the city engineer," which constitutes negligence per se; in violating chapter 25, § 19 of the Marietta City Code which provides as follows: "No person shall be allowed or permitted to obstruct any sidewalk or street in the city by putting any box, table, steps, merchandise or any other thing thereon, or to use the streets and sidewalks for the display of goods, wares, or merchandise of any kind, nor shall the streets or sidewalks be obstructed in any other manner whatsoever," which constitutes negligence per se. The pile of dirt and ditch were left unprotected without contractual authority and contrary to contractual obligations; the defendant had authority to refill the ditch and remove the dirt and had a duty to do so to protect the general public and the plaintiff's son; and the defendant had the control of the opening and closing of the ditch and had a general duty to the public and a contractual duty to place lights, flags and other signs or barriers on the street, as the defendant had entered into a contract with the City of Marietta, which, under its franchise, relieved the city of such warning. The defendant was using the street on the date in question under a quoted ordinance and franchise; the defendant had a duty to the general public, including the plaintiff's son, to place lights, barricades, barriers and other signs on the street to warn them of the obstruction which the defendant failed to do; the direct cause of the death of the plaintiff's son was the negligence of the defendant; the plaintiff's minor son was exercising that degree of care and caution in keeping with his age.

The defendant filed general and special demurrers to the petition which were overruled. The defendant excepted to that ruling and in Atlanta Gas Light Co. v. Brown, 94 Ga. App. 351 ( 94 S.E.2d 612) this court held that the judge erred in overruling the general demurrer to the petition. Prior to arrival of the remittitur in the superior court the plaintiff filed an amendment which alleged in substance that: sunrise was at 7:39 a. m. on January 25, 1955; that as decedent came around the curve the sun was shining directly into the decedent's eyes and obscured his vision; that as a result of the sun blinding decedent he was unable to see the said dirt pile and excavation until he was upon the same; that as decedent arrived at the dirt pile and excavation, there was another vehicle approaching from the opposite direction on Kennesaw Avenue; that decedent was unable to stop the truck after it started skidding in the loose dirt that had been placed in the road by the defendant.

The defendant filed additional demurrers and renewed those it had originally insisted upon. The judge sustained the demurrers and dismissed the petition. The plaintiff excepted and the case is here for review.

QUILLIAN, J.

1. The defendant insists that the deceased could have avoided the obstruction if he had exercised ordinary prudence for his own safety. On the first appearance of the case at bar this court pointed out several deficiencies in the petition, upon which it based the ruling that the general demurrer should have been sustained.

The first of these deficiencies was that the contrary not being pleaded, it was presumed that there was ordinary visibility along the street at the time of the occurrence which resulted in the death of the deceased, and no reason was alleged why the deceased could not see the condition of the street for a distance of 400 feet.

Before the remittitur reached the trial court the plaintiff amended the petition. The amendment undertook to excuse the deceased's failure to exercise ordinary care in failing to avoid the defendant's negligence by stopping the dumptruck he was driving before colliding with the pile of dirt which the defendant had left upon the street.

The amendment satisfactorily explained the deceased's failure to observe the lose dirt scattered over the pavement and the dirt negligently piled upon the pavement.

But the averment revealed that after being blinded and his vision of the way ahead obscured by the sun shining in his eyes, the deceased continued to drive at the rate of twenty-five miles per hour, the distance of three hundred feet, until his dumptruck struck the loose dirt which caused the truck to skid and be precipitated one hundred feet and against the dirt which the defendant had negligently piled upon the pavement.

The plaintiff earnestly argues that the averment that the deceased was blinded by the sun was qualified by the allegation that his vision was thus obscured, to mean only that his view of the way ahead was only partly shut off or obscured. If it could be conceded that the word obscure meant that the deceased's vision was impaired, and not completely shut off, there would then be a conflict between the allegations that the deceased was blinded and the averment that his vision was obscured.

A well established rule is: "Where pleadings are ambiguous or couched in alternative expressions, on demurrer they will be given that construction which is most unfavorable to the pleader. Accordingly, where two matters are pleaded in the disjunctive, one of which is good and the other not, the petition is to be treated as pleading no more than the latter, under the rule that the pleadings must be construed most strongly against the pleader." Overton v. Alford, 210 Ga. 780, 782 ( 82 S.E.2d 836); Wynndam Court Apartment Co. v. First Federal Savings c. Assn., 204 Ga. 501 ( 50 S.E.2d 611); Robertson v. Nat Kaiser Investment Co., 82 Ga. App. 416, 419 ( 61 S.E.2d 298).

The petition, construed as it must be on demurrer most strongly against the plaintiff ( Jenkins v. Dunlop Tire c. Corp., 71 Ga. App. 255 (3), 30 S.E.2d 498), must be held to allege that, on rounding the corner, the deceased could not see the way ahead yet made no effort to bring his dumptruck to a stop in order to avoid obstacles that might be on the street. We recognize that a driver, however prudent he may be, must have time enough after being suddenly blinded to realize the situation with which he is confronted before he can be expected to stop his vehicle.

Under the holdings in Burd v. City of Atlanta, 52 Ga. App. 681, 683 ( 184 S.E. 412), Stephens v. Tatum, 92 Ga. App. 256 ( 88 S.E.2d 456) and Branan v. May, 17 Ga. 136, we are constrained to hold that the petition affirmatively revealed that the deceased failed to exercise ordinary care to avoid the consequence of the defendant's negligence after the same could have been discovered by the exercise of ordinary care upon his part.

The factual situation presented by the pleadings in this case is not to be confused with those in which a driver by a sudden emergency is prevented from seeing an obstacle the defendant has placed in the street ( Lundy v. City Council of Augusta, 51 Ga. App. 655, 181 S.E. 237) or is prevented from observing an obstacle by optical illusion ( Pittman v. Staples, 95 Ga. App. 187, 97 S.E.2d 630), or fails to perceive it because his attention is diverted in response to a human impulse, such as might attract the attention of a prudent person similarly situated. Glover v. City Council of Augusta, 83 Ga. App. 314 ( 63 S.E.2d 422).

2. The defendant insists that it was not liable because, under the ordinance granting the franchise to the defendant, it had a legal right to pile the dirt in the street and therefore this act could not constitute negligence on its part. It is true that the defendant had a right to occupy the streets and to install any apparatus necessary to conduct its business, but the mere right to pile dirt on the streets did not relieve it from liability for its negligence in so doing. Georgia Ry. c. Co. v. Tompkins, 138 Ga. 596, 598 ( 75 S.E. 664); Trammell v. Matthews, 84 Ga. App. 332, 337 ( 66 S.E.2d 183).

It is clear that the city did not intend to relieve the defendant of liability because the ordinance granting the franchise provided in part: "Said grantee shall save and keep harmless the city from any and all liability by reason of damage or injury to any person or persons whatsoever, on account of negligence of the grantee in the installation and maintenance of its mains and pipe lines along said streets, alleys and public ways, provided the grantee shall have been notified in writing of any claim against the city on account thereof and shall have been given ample opportunity to defend the same."

Some of the allegations of negligence in the petition were that: the defendant threw dirt over almost the entire surface of the street without concentrating it in one pile; in failing to place any barriers, barricades, torches, red flags or other warning devices of any kind around the dirt or ditch. "A contractor constructing a road or bridge owes a duty to the public to exercise ordinary care to protect it from injuries arising by reason of such construction. Davis v. Smiley, supra [ 33 Ga. App. 508, 126 S.E. 904]; Doby v. W. L. Florence Construction Co., 71 Ga. App. 888 ( 32 S.E.2d 527); 104 A.L.R. 956, I, a; 7 A.L.R. 1203, I; 43 Am. Jur. 827, § 82. A motorist upon the public highways of this State has a right to assume that the road ahead of him is clear. Mathis v. Nelson, 79 Ga. App. 639, 642 ( 54 S.E.2d 710)." State Construction Co. v. Johnson, 82 Ga. App. 698, 701 ( 62 S.E.2d 413).

3. The petition sufficiently alleged the negligence of the defendant, but set forth no cause of action because it affirmatively revealed that the deceased did not exercise ordinary care to avoid such negligence after the same could have been discovered by the exercise of ordinary care on his part.

It is held in Mayor c. of Cordele v. Jeter, 9 Ga. App. 348 ( 71 S.E. 589) that the defendant's negligence, the consequence of which the plaintiff could shun by the use of ordinary care, goes for nothing.

The petition set forth no cause of action, and the general demurrer to the same was properly sustained by the trial judge.

Judgment affirmed. Felton, C. J., and Nichols, J., concur.