Opinion
41022.
DECIDED JANUARY 6, 1965. REHEARING DENIED JANUARY 20, 1965.
Action for damages. Polk City Court. Before Judge Flournoy.
Mundy Gammage, William W. Mundy, for plaintiff in error.
Matthews, Maddox, Walton Smith, Oscar M. Smith, contra.
The court erred in its judgment sustaining the general and special demurrers to the petition as amended.
DECIDED JANUARY 6, 1965 — REHEARING DENIED JANUARY 20, 1965.
John L. Pannell brought an action against Ralph Fuqua to recover damages for personal injuries caused by the defendant's alleged negligence. The petition as amended alleged substantially as follows: That at the time of the injury, approximately 10:30 a. m. on December 22, 1962, the plaintiff, an employee of Life Casualty Insurance Company, was a passenger in an automobile driven by the defendant, a fellow employee of about one month's experience, the defendant having requested the plaintiff, as an accommodation to the plaintiff and without compensation, to go on the defendant's insurance route and assist him in learning his job; that the injury occurred in Aragon, Polk County, Ga., on a portion of Oak Street in which many children play in the street, which was well known to the defendant; that, at the time of the injury, the plaintiff was sitting on the passenger's side on the front seat with his head down, looking in the defendant's rate book, when the defendant suddenly stopped the automobile, throwing the plaintiff into the dashboard, striking his chest and injuring the lower region of his back; that the defendant had seen a little girl about 7 or 8 years old running from a yard toward the street when she was about 10 feet from the street and could have stopped the automobile without applying his brakes with his full might; that at the time the defendant saw the little girl running toward the street, the defendant's car was 70 feet or more from the point at which said child would have entered the street and was traveling approximately 15 m.p.h; that the defendant could and should have applied his brakes upon seeing the child running toward the street so as to bring the car under such control as would have permitted him to have stopped without suddenly applying the brakes with full force, but instead of so doing he continued on his course without reduction of speed; that the defendant failed to warn the plaintiff of the presence of the child and the probability of a sudden stop; that the defendant, in the exercise of ordinary care, should have anticipated that a child of the tender age of 7 or 8 years would run into the street; that the defendant negligently and in violation of the requirements of ordinary care, failed to heed the approach of the child and bring his car under proper control, thereby creating the emergency which required him to apply his brakes with full might, causing the plaintiff's alleged injuries; that his injuries damaged and impaired his capacity to labor and caused, and will continue to cause, him to suffer great pain and agony, both mental and physical; that his impairment has caused him to lose $15 per week in pay; that, at the time of his injury, he was a well, strong, healthy and able-bodied man 40 years old, with a reasonable life expectancy of 27.61 years under the Carlisle Mortality Table; that he was in the exercise of ordinary care for his own safety and could not have thereby avoided the consequence of the defendant's negligence; that, at the time and place of the injury, the defendant was not in the exercise of ordinary care for his own or others' safety and that, by the exercise of ordinary care the defendant could have avoided the alleged injuries; that the defendant was negligent in the following particulars: (a) In suddenly stopping the automobile without warning the plaintiff, who was a passenger therein; (b) In failing to anticipate that said child might run into the street and in failing to have the automobile under control so that it could be stopped in a normal manner; (c) In failing to drive the automobile at an appropriate reduced speed when special hazards existed with reference to children playing on or near or in the street; and (d) In failing to warn the plaintiff of the approaching sudden stop. The prayer is for damages for medical expense, impairment of capacity to labor, loss of past and future earnings, pain and suffering and permanent, partial disability.
The court sustained the defendant's general and special demurrers to the original petition and the renewed general and special demurrers to the petition as amended, dismissing the petition, to which judgment the plaintiff excepts.
1. Questions of diligence, negligence and proximate cause are ordinarily questions of fact for a jury, and will not be decided by the courts on demurrer except in palpably clear and indisputable cases. See cases annotated under Code Ann. § 105-201, catchwords "Question for jury" and Code § 105-203, catchword "Jury." In the present case the allegation that the defendant's speed was only 15 m.p.h. is almost enough to negative any negligence on his part. The allegations as to the defendant's having seen the child running toward the street and his knowing of the presence of children in that particular locale, however, raise a jury question as to whether his sudden stop and failure to warn the plaintiff thereof constituted actionable negligence, the degree of which depending upon their determination of the plaintiff's status in the automobile. Even if the petition alleges a sudden emergency situation, whether or not such existed is still a jury question. Economy Gas c. Co. v. Kinslow, 74 Ga. App. 418, 421 ( 39 S.E.2d 899); Doyle v. Dyer, 77 Ga. App. 266 ( 48 S.E.2d 488); Shockey v. Baker, 212 Ga. 106, 110, 111 ( 90 S.E.2d 654).
While there are a number of inaptly pleaded allegations in the petition which might be subject to attack by special demurrer, they are not sufficient to support the sustaining of the general demurrer. Although the petition does not specifically allege that the plaintiff and defendant were riding in an automobile or that the defendant was driving, inferences to this effect are demanded from the allegations that the plaintiff was sitting on the passenger's side of "said car" and that the defendant applied the brakes and stopped "said automobile." Bivins v. Tucker, 41 Ga. App. 771, 774 ( 154 S.E. 820). It is contended that there is no allegation that the defendant did apply his brakes with his full might; the petition alleges, however, that the defendant "failed to . . . bring his car under proper control thereby creating the emergency which required him to apply his brakes with full might. . ." (Paragraph 8 of the petition as amended.) The allegation, that at the time the defendant saw the little girl running toward the street his car was 70 feet or more from the point at which said child would have entered said street, while somewhat incomplete, is construed to mean that this point was in front of the automobile and the fact that it is not alleged whether or not she actually entered the street is immaterial, since it might be shown that the defendant had reason to apprehend that she was going to do so. Whether the defendant had the automobile under such control as would allow him to stop without suddenly applying the brakes and whether he had time in which to warn the plaintiff were issues to be decided by the jury under the then existing circumstances. The allegation that the defendant, in the exercise of ordinary care, should have anticipated that a child would run into the street, was supported by the allegations that the defendant knew that many children lived and played on that particular portion of that street, and that the defendant saw her from a distance of 70 feet. The court therefore erred in sustaining the general demurrer to the petition as amended.
2. Special demurrer 2, which attacked the allegation concerning the defendant's failure to anticipate the child's running into the street, should have been overruled for the reason discussed in the latter part of Division 1 hereinabove.
Special demurrer 3 attacks the allegation that the defendant was not in the exercise of ordinary care for his own safety or for the safety of others, on the grounds that no facts are alleged to support the conclusion. As indicated previously herein, questions of diligence and negligence are for the jury, and the allegations concerning the speed of the automobile, the distance from which the defendant first saw the child and the knowledge of the possible presence of children in that area provide factors to be considered in determining whether there was failure to exercise ordinary care. Special demurrer 3 was improperly sustained.
The remaining special demurrers are addressed to allegations which, it is claimed, are not supported by other allegations, such as: failure to warn the plaintiff and failure to anticipate the child's running into the street. These issues must be determined by the jury, considering such evidence as may be presented on the matters of speed, distance and time.
For the foregoing reasons, the court erred in its judgment sustaining the general and special demurrers to the petition as amended.
Judgment reversed. Frankum and Pannell, JJ., concur.