Opinion
40063.
DECIDED APRIL 30, 1963.
Action for damages. Fulton Civil Court. Before Judge Camp.
Miles B. Sams, for plaintiff in error.
1. The petition stated a cause of action, therefore it was not error to overrule the motion to dismiss.
2. There being some evidence to support the judgment, the court did not abuse its discretion in overruling the motion for new trial.
DECIDED APRIL 30, 1963.
Mrs. Shirley Sicro brought suit against A. C. Hopkins and Jack Williams for damages to her automobile caused by the alleged negligence of the defendants. The petition alleged substantially that on December 20, 1959, at about 12:30 a. m., the plaintiff was driving her 1957 Chevrolet automobile in a northerly direction on North Highland Avenue at its intersection with Los Angeles Avenue; that North Highland Avenue is a 21-foot wide paved street divided into two traffic lanes by a painted center stripe; that after driving about 20 to 25 feet from the intersection at a speed of 10 to 15 miles per hour, the plaintiff observed a truck, owned by defendant Hopkins and driven by defendant Williams in the scope of his employment by Hopkins, proceeding in a southerly direction on North Highland Avenue and transporting a small house which protruded about 4 feet into the plaintiff's lane; that although there were lights on the tractor, there were none on the portion of the house which extended across the center line of the street; that the protruding portion of the house, traveling at a speed of 30 to 35 miles per hour, struck the plaintiff's automobile, which was completely within the northbound lane; dragging it into a parked automobile in the northbound lane; that the fair market value of the plaintiff's automobile before the collision was $1,500 and afterwards was $600; that the negligence of the defendants was the sole and proximate cause of the collision and consisted of: violation of Code Ann. § 68-1633 (failure to drive a vehicle on the right side of a roadway of sufficient width); violation of Code Ann. § 68-1634 (failure to give at least one-half of the main traveled portion of a roadway to a vehicle proceeding in the opposite direction when passing); violation of Code Ann. § 68-1637 (2) (driving a vehicle to the left side of the center of a roadway when approaching within 100 feet of an intersection); violation of Code Ann. § 68-1640 (failure to drive a vehicle as nearly as practical entirely within a single lane); failure to exercise ordinary care in the operation of a vehicle by driving it on a public street, at night, with a moving projection on the left side of the roadway, occupying more than one-half of the main-traveled portion of the roadway. Defendant Hopkins filed an answer alleging that the plaintiff's damages were due to her own negligence or that of her husband, which exceeded any negligence of the defendant. By amendment the answer alleged that the defendant was authorized on January 29, 1959, to move the house and was at all times operating within the law and in conformity with all applicable State laws, regulations and city ordinances. A copy of the authorization from the Truck Weighting Permit Division of the State Highway Department of Georgia for the transporting of the house was attached as an exhibit to the answer. At the beginning of the trial defendant Hopkins moved to dismiss the petition, which motion was overruled by the court without hearing argument thereon. The case was tried before the judge without the intervention of a jury, and a judgment of $800 was rendered in favor of the plaintiff against the defendants. Defendant Hopkins filed a motion for a new trial on the usual three general grounds, which motion the court overruled. Defendant Hopkins excepts to the judgments of the court in overruling the motion to dismiss and the motion for new trial.
1. A motion to strike, or to dismiss, is, in effect, a general demurrer and is therefore subject to the rule that it is ineffectual unless the pleading against which it is directed as a whole is fatally defective. Venable v. Gresham, 105 Ga. App. 720, 721 ( 125 S.E.2d 507) and citations. The petition alleged that the plaintiff was driving within her own lane at a reasonable rate of speed; that the collision occurred late at night and that the portion of the house which protruded into the plaintiff's lane was unlighted; and that the defendants' alleged acts of negligence were the sole and proximate cause of the collision. These allegations set out a cause of action sufficient to withstand a general demurrer, hence the court did not err in overruling the motion to dismiss.
2. In passing upon the general grounds of a motion for new trial, this court will not disturb the trial court's refusal to grant a new trial if there is any evidence to support the judgment. City of McRae v. Folsom, 191 Ga. 272, 276 ( 11 S.E.2d 900); Madison v. Montgomery, 206 Ga. 199 (2) ( 56 S.E.2d 292); see also annotations under Code § 70-202, catchword "Judge." The plaintiff testified that preceding the collision she saw a large, dark, unlighted shape which she could not identify and that she immediately stopped her automobile, whereupon she was struck by what she later learned was the house. The plaintiff's husband testified that he was a passenger in the plaintiff's automobile at the time of the collision; that he could not drive, had never driven and did not have a license to drive an automobile; that although the street was lighted he did not see the house; that there were no lights on the house or warnings given him by the driver of the truck or by any other means. Defendant Hopkins testified that he owned the truck; that he had hired the men who were operating it for him; that the house covered more than one-half of the roadway; that he was moving about five miles per hour; that the house had lights across the top and on the back; that a lead car was furnished to give warning to approaching vehicles; that lights were being flashed as the plaintiff approached. An occupant of the truck testified that his job was to give warning to approaching vehicles; that he was flashing a red flash light in front of the truck; that there were lights on the truck and on the house. An occupant of the lead car testified that he was also waving a warning light and that there were lights on the house when he last saw it. All three of the latter witnesses testified that they identified the plaintiff's husband as the driver of the plaintiff's automobile. The conflicts in the evidence were questions for the trior of fact and not one of law for this court. "As the case was submitted to the judge for determination of all issues without a jury, wherever it is necessary to consider any conflict in the evidence in the record, that view of it must be taken which is most favorable to the prevailing parties." City of McRae v. Folsum, 191 Ga. 272, 276, supra. The general grounds were therefore without merit and the motion was properly overruled.
The court did not err in its judgments overruling the motion to dismiss and the motion for new trial.
Judgments affirmed. Eberhardt and Russell, JJ., concur.