Opinion
34082.
DECIDED JULY 3, 1952.
Action for damages; from McDuffie Superior Court — Judge Perryman. March 4, 1952.
Vane G. Hawkins, Stevens Stevens, for plaintiff in error.
Gould B. Hagler, Knox Neal, Fulcher Fulcher, contra.
The petition showed that the plaintiff by the exercise of ordinary care could have avoided the consequences of the defendant's negligence, and the court properly sustained the general demurrer and dismissed the action.
DECIDED JULY 3, 1952.
Mrs. R. M. Hubert sued The Knox Corporation for damages allegedly caused by the negligence of the defendant. The petition substantially alleged: that on November 25, 1950, at approximately three o'clock p. m., the plaintiff was driving her husband's 1949 Nash automobile in a westerly direction from Athens, Georgia, toward Atlanta, Georgia, on Georgia State Highway 78, a public highway; that, when the plaintiff reached a point about three miles west of the city limits of Snellville, Georgia, she saw a truck approaching her from the opposite direction; that said truck was loaded with kegs of nails, each weighing approximately 100 pounds; that the truck was owned by the defendant and was being operated by Henry Thomas Call away, an employee of the defendant, who, at the time, was operating the truck within the scope of his employment; that the truck was traveling at a speed of approximately 65 miles per hour; that as the truck approached a bridge on said highway, the plaintiff reduced the speed of her vehicle to approximately 25 miles per hour in order to avoid meeting the speeding truck on the bridge; that the defendant's driver did not reduce the speed of the truck, and when the truck reached the east side of the bridge, it hit a dip in the highway and some of the kegs of nails which were loaded on the truck were thrown upon the car the plaintiff was driving and some of the kegs were thrown upon the highway, the sides of the truck not being high enough to hold the kegs of nails on the truck under the circumstances set forth; that the kegs burst open as they hit the car and the highway and nails were scattered over the highway; that the defendant's driver knew, or in the exercise of ordinary care should have known, of the dip in the highway at the said place; that the weather was extremely cold, and the plaintiff become exposed to the severe cold at intervals between the time the nails were thrown from the defendant's truck and the time the plaintiff finally reached her destination, as shown by the following chain of events; that when the nails hit the plaintiff's car, she stopped to ascertain the damage to the car and after a delay of two hours she continued her trip; that at seven o'clock p. m. the plaintiff reached a point on the Marietta highway about a mile and a half past the intersection of West Pace's Ferry Road and the Marietta highway, and at that point both rear tires became flat, having been punctured by the defendant's nails; that the plaintiff then left the car to seek aid and, upon observing a light in a house off the highway, she proceeded through some woods toward the house but because of the unfavorable terrain she fell to the ground; that after she fell the plaintiff realized that she could not continue and returned to the car; that after about half an hour a car stopped and took the plaintiff in search of help; that at 9:30 p. m. the plaintiff hired Eubanks Tire Battery Company in Atlanta to repair the tires and rode with an employee of the company to where the automobile had stopped; that when the tires were repaired the plaintiff went to her mother's home in Marietta, Georgia, and then immediately went into a complete state of shock; that because of the defendant's negligence the plaintiff was injured in enumerated particulars due to said exposure; that the plaintiff's damages were directly and proximately caused by the following acts of negligence on the part of the defendant acting through its driver: driving the truck at a speed greater than 55 miles per hour in violation of the law of Georgia, the same being negligence per se; failing to have the barrels of nails adequately fastened to the truck to prevent them from falling or jolting off; failing to reduce the speed of the truck in rounding a curve, the same being negligence per se, driving the truck at the time and place alleged at a rate of speed greater than was reasonable and proper, having due regard for width, grade, and condition of the road, by failing to check his speed and apply his brakes so as to have avoided hitting the dip in the highway at a speed great enough to cause the kegs of nails to be thrown upon the car which the plaintiff was driving.
A general demurrer to the petition was sustained, the action was dismissed, and the plaintiff excepts.
Construing the petition against the plaintiff, it will be construed to mean that the nails were thrown upon the car and upon the highway either in front of the car driven by the plaintiff or underneath the same and that the plaintiff knew of such fact at the time she stopped the vehicle. The petition is further construed to mean that the plaintiff stopped to ascertain the damage to parts of the body of the automobile resulting from the impact from the kegs of nails when they hit the car. Where it does not appear from the allegations of a petition that the plaintiff could have avoided the consequences of a defendant's negligence by the exercise of ordinary care after the defendant's negligence was discovered by the plaintiff or could have been discovered by the exercise of ordinary care, it is not incumbent upon the plaintiff to negative her inability to avoid the defendant's negligence. However, as in this case, where it is apparent from the allegations of the petition that, in view of the truths of human experience, the plaintiff in the exercise of ordinary care after discovering the negligence of the defendant could have avoided the consequences thereof, so far as her alleged personal injuries are concerned, a general demurrer to the petition will be sustained in the absence of further allegations showing why the plaintiff in the exercise of ordinary care could not have avoided the consequences of the defendant's negligence after the discovery of such negligence. In the instant case, after the nails fell from the truck, struck the automobile and were scattered over the highway, the plaintiff stopped the automobile and spent two hours in ascertaining the damage done to the automobile. In a situation such as this, it would be obvious to a person of ordinary intelligence that a probable consequence of the scattered nails about the automobile would be a punctured tire. Even if the petition is construed to allege that this inspection included an inspection of the tires, a person using ordinary care would have discovered the presence of the nails in the tires unless something unusual prevented such a discovery. The petition did not allege any reason why the nails in the tires were not discovered during the inspection or that something unusual prevented their discovery. Therefore, under our construction of the petition it showed that the plaintiff by the exercise of ordinary care could have discovered the nails in the tires and could have thus avoided the punctures caused by them, and the petition was subject to a general demurrer. Code, § 105-603; Nabors v. Atlanta Biltmore Corp., 77 Ga. App. 730 ( 49 S.E.2d 688).
The court did not err in sustaining the demurrer and in dismissing the action.
Judgment affirmed. Sutton, C.J., and Worrill, J., concur.