Opinion
43579.
ARGUED APRIL 1, 1968.
DECIDED APRIL 5, 1968.
Action for damages. Catoosa Superior Court. Before Judge Painter.
McCamy, Minor, Vining Phillips, Carlton McCamy, for appellant.
Mitchell Mitchell, Warren N. Coppedge, Jr., John E. Wiggins, for appellee.
The trial court did not err in its judgment overruling the general demurrer to the petition. See Hardy v. Brooks, 103 Ga. App. 124 (1, 2) ( 118 S.E.2d 492); Thomas v. Williams, 105 Ga. App. 321, 326 (3) ( 124 S.E.2d 409); and cit.
Judgment affirmed. Eberhardt and Whitman, JJ., concur.
ARGUED APRIL 1, 1968 — DECIDED APRIL 5, 1968.
Mrs. Delphia Hanson brought an action against Ray Coffey (also spelled `Coffee' in the record), d/b/a Ray's Auto Parts, for damages for the death of her husband caused by the alleged negligence of the defendant. The petition alleged substantially and materially as follows: At 3:15 p. m., March 14, 1964, one of the defendant's wreckers, which the defendant had dispatched at some time earlier on that day, was engaged in pulling a tractor-trailer truck out of a ditch adjacent to the northbound lane of U.S. Highway 41, approximately 4.8 miles south of the city limits of Ringgold, Georgia, into which ditch the truck had careened at approximately 11 o'clock that morning. In attempting to pull the truck up off its side, the wrecker was headed in a westerly direction, blocking both north and southbound traffic on the highway. At said time and place there was a pelting rain causing poor visibility and further causing the surface of the highway to be extremely slick. 250 feet south of the wrecker was the crest of a hill, which made the north side of said crest invisible to northbound traffic immediately before reaching the crest. Immediately prior to 3:15 p. m., two northbound vehicles crested the hill in succession and stopped near the wrecker and a third vehicle traveling at approximately 15 m.p.h. struck the second vehicle in the rear, causing it, in turn, to hit the rear of the first vehicle. A fourth vehicle then pulled in behind the third vehicle, leaving only 152 feet between the fourth vehicle and the hill crest. At 3:15 p. m., the plaintiff's husband approached the hill crest from the south at a speed of approximately 35 m.p.h., crested the hill, saw the wrecker and the four vehicles and slammed on his brakes in a futile attempt to avoid hitting the rear of the fourth vehicle. The negligence of the defendant, which is alleged to be the sole proximate cause of the injuries and subsequent death of the plaintiff's decedent, was alleged to be his failure to warn the decedent of the dangerous situation by means of a person and flares or other warning devices stationed on the hill crest.
The defendant appeals from the judgment of the court overruling his general demurrer to the petition.