The trial court erred in overruling the special demurrer to paragraph 20 (b) of the petition since the negligence specified therein had no causal connection with the collision under the factual situation appearing from the averments of the petition. The general demurrer and other special demurrers to the petition were properly overruled.
DECIDED APRIL 4, 1961.
J. B. Browning filed suit against D. B. Kahle in the Superior Court of Fulton County to recover damages arising out of an automobile collision which occurred on Lenox Road in the City of Atlanta, Fulton County, Ga. The petition alleged in substance the following material facts: On December 26, 1959, at approximately 7:15 p. m. the plaintiff was driving his automobile southward on Lenox Road and was approaching the residence known as 2885 Lenox Road. As the plaintiff reached a point just north of the driveway at 2885 Lenox Road, he brought his automobile to a stop on the right-hand side of Lenox Road about 6 to 8 inches from the curb in order to allow northbound and southbound traffic to clear before turning left into the driveway at 2885 Lenox Road. After several northbound and southbound automobiles passed, the plaintiff signaled for a left turn with the signal blinker on his automobile, and, seeing no automobiles approaching from the north or south, proceeded to turn left into the driveway of 2885 Lenox Road, and had just entered the driveway when the automobile driven by the defendant northward on Lenox Road, at a speed of approximately 75 to 80 miles per hour, suddenly and without warning and with great force and impact struck the right front side of the plaintiff's automobile. The petition alleged that the defendant was negligent in driving his automobile at said time and place at a speed of approximately 75 to 80 miles per hour, the same being negligence per se in violation of Section 30.74 of the Traffic Ordinance of the City of Atlanta; driving at a speed greater than 35 miles per hour on a roadway which the defendant knew contained many hills, dips, inclines and declines, as well as many driveways leading into said roadway "from and into which automobiles might reasonably be expected to be using"; failing to keep a lookout ahead so as to avoid striking the plaintiff's automobile; failing to turn his automobile to the left so as to pass around the plaintiff's automobile; driving at a speed that was greater than reasonable and prudent under roadway conditions and having regard to the actual and potential hazards existing, the same being negligence per se in violation of Code § 68-1626; driving at a speed in excess of 35 miles per hour in a residential district in violation of Code § 68-1626 (b) (1), the same constituting negligence per se; failing to apply brakes in time to avoid striking the plaintiff's automobile; and in driving into the plaintiff's automobile after the same was visible or in the exercise of ordinary care could have been visible to the defendant from a distance of 500 feet before the point of collision.
The trial court overruled the defendant's general demurrer and certain of his special demurrers to the petition; and the exception is to that judgment.
JORDAN, Judge.
1. Ordinarily questions of diligence and negligence including contributory negligence and proximate cause are peculiarly for the jury and this court will decline to solve such questions on demurrer except when they appear palpably clear, plain and indisputable. Rogers v. Johnson, 94 Ga. App. 666, 680 ( 96 S.E.2d 285); Long Construction Co. v. Ryals, 102 Ga. App. 66 (1) ( 115 S.E.2d 726).
Under the factual situation appearing from the averments of the instant petition, a cause of action was clearly alleged against the defendant. It was a question for the jury, and not for the court on demurrer as contended by the defendant, as to whether the plaintiff by the exercise of ordinary care could have avoided the consequences to himself caused by the defendant's alleged negligence. Accordingly, the trial court did not err in overruling the general demurrer to the petition.
2. The allegations in paragraphs 3 and 11 of the petition, as to the general physical condition of the roadway in question and the defendant's knowledge of the same, simply constituted matters of inducement, and were not absolutely irrelevant so as to be subject to being stricken. The special demurrers to these paragraphs were without merit.
3. Paragraph 20 (b) of the petition specified that the defendant was negligent: "In driving at a speed greater than 35 miles per hour on a roadway which defendant knew contained many curves, hills, dips, inclines and declines, as well as many driveways leading into said roadway from and into which automobiles might reasonably be expected to be using." The defendant demurred to this paragraph and moved that it be stricken as an allegation of negligence because the petition failed "to show any causal connection between the defendant's knowledge of the alleged conditions of the road and the cause of the accident." Under the averments of the petition which disclosed that the condition of the roadway in question in the immediate vicinity of the collision afforded the defendant an unobstructed view of the point of collision from a distance of 500 feet, this specification of negligence, based on the defendant's knowledge of the alleged condition of the roadway in general, was subject to the special demurrer filed thereto and should have been stricken by the trial court.
Judgment affirmed in part and reversed in part. Townsend, P. J., Carlisle and Frankum, JJ., concur.