Sikes v. Norris
Sikes v. Norris
Opinion of the Court
The petition as finally amended, omitting formal parts, alleged in substance the following: The deceased Mary Lucile Norris was the lawful wife of the plaintiff and not having left any children surviving her the plaintiff, as widower and sole surviving heir, is entitled to recover the full valúe of her life as provided by Code (Ann.) § 105-1306; that on February 1, 1958, at about 9:15 p.m., M. R. Sikes was driving a Chevrolet automobile west on Mount Creek Church Road and was approaching Bold Springs Road; that Mount Creek Church Road is maintained by Walton County and runs easterly and westerly and Bold Springs- • Road is maintained by Walton County and runs northerly and southerly; that Bold Springs Road is the principal and muchly used highway; paved with asphalt (black top) and that Mount Creek Church Road is unpaved east of the said intersection and is seldom used by vehicular traffic; that the plaintiff’s now deceased wife was riding in the Sikes automobile as an invited guest at such time and place and as such guest had no control over the driver of the automobile; that the defendant Sorrells at such time was approaching the intersection on Bold Springs Road traveling in a northerly direction, that at such time the Sikes automobile was traveling in excess of 40 miles per hour when it reached a point 75 feet east of such intersection; that the night was dark, the weather dry, and no lights were visible at the intersection other than the headlights on the vehicles involved in the collision; that Bold Springs Road is a straight highway with no curves for one-half mile north or south of the intersection while Mount Creek Church Road is a narrow winding dirt road for
2. The only other ground of special demurrer to be passed upon attacks subparagraph (g) of paragraph 23 of the petition, quoted above, because, since the allegations of the petition show that the Sikes’ automobile was approaching from the right of the Sorrells’ automobile, the operator of the Sikes’ automobile had no duty to stop, sound his horn or give any other signal before entering the intersection.
“ ‘The driver having the right of way at a highway intersection . . . ordinarily has the right to assume and to act upon the assumption that drivers of cars approaching and crossing on his left will yield the right of way, and also that they will exercise the ordinary care required of them. But even though a driver on the left has failed to observe a right of way statute and is thus guilty of negligence per se, or has otherwise failed to exercise ordinary care in approaching the intersection, this will not render such a driver liable (as a matter of law) for a collision, unless such 'negligence proximately contributed to the collision. This is true for the reason that such negligence of a driver approaching on the left will not relieve the driver having the right of way of his own legal duty to exercise ordinary care
3. In addition to the allegations of the petition shown in the above statement of facts, • the plaintiff- by amendment alleged the following: “That defendant, Sikes, was thoroughly familiar with the said road intersection, and in traveling east on said Mountain Creek Road toward said intersection with Bold Springs Road . ■. . well knowing that said Bold Springs Road was a muchly used highway, drove his automobile into said intersection without reducing his speed and into- the path of defendant Sorrells’ automobile which was entering said intersection as aforesaid.”
The defendant Sikes contends that since the petition alleges that when the Sorrells’ automobile was approximately 300 feet from the intersection and the Sikes’ automobile was within 75 feet of the intersection, and that the Sikes’ automobile was traveling 40 miles per hour while the Sorrells’ automobile was traveling in excess of 60 miles per hour, that construing the petition most strongly against the pleader under such allegations the Sikes’ automobile would have been across the intersection before the Sorrells’ automobile reached the intersection.
Of course it cannot be contended that had the Sikes’ automobile been traveling 40 miles per hour and the Sorrells’ automobile 60 miles per hour toward the intersection at a time when the Sikes’ automobile was 75 feet from the intersection and the Sorrells’ automobile was 300 feet from the intersection that the collision would have occurred, for the Sikes’ automobile would have traveled 200 feet at 40 miles per hour while the Sorrells’
Under such construction the allegations of negligence contained in subparagraph (a) of paragraph 23, supra, must fall as being a conclusion of the pleader not supported by the allegations of fact. “Well pleaded facts are to be taken as true on the hearing on a. demurrer, but a general demurrer does not admit conclusions of the pleader where the facts are not averred upon which the conclusions are supposed to rest. Fowler v. Southern Air Lines, 192 Ga. 845 (16 S. E. 2d 897).” Dowling v. Southwell, 95 Ga. App. 29 (4) (96 S. E. 2d 903). The other allegations of negligence, denominated as gross negligence by the petition, were supported by the allegations of fact and do not fall as being conclusions not supported by the allegations of fact.
In Smith v. Hodges, 44 Ga. App. 318 (161 S. E. 284), a petition by a guest passenger against the host driver, which alleged that the host driver drove into a lighted “loading platform” at night, was held to be sufficient as against general demurrer even though it was not alleged that the host saw the lighted loading platform.
In the present case, while it is not alleged that Sikes saw the Sorrells’ automobile, the allegations that Bold Springs Road was straight for one-half mile, that the Sorrells’ automobile had its headlights burning, and was in full view of Sikes, places this case in much the same category as Smith v. Hodges, 44 Ga. App. 318, supra, where it was said: “Be it remembered that the petition is being considered on general demurrer, and also that the question is not whether the defendant was in fact guilty of gross negligence, but is whether upon proof of the allegations of the petition, without more, a jury would be authorized to find that he was negligent in that degree. 'Questions of negligence
Judgment affirmed.
Dissenting Opinion
dissenting. The majority opinion clearly recognizes the contradictory nature of the pleadings in the petition, but then proceeds to harmonize the conflicting allegations by adopting a construction favorable to the pleader, thus violating a well-established principle of law. In construing contradictory pleadings, the. version most unfavorable to the pleader must be taken, as a pleading must be construed most strongly against the pleader. Independent Life cfee. Ins. Co. v. Pantone, 80 Ga. App. 426 (1) (56 S. E. 2d 153).
The petition alleges the occurrence of a collision between two automobiles and also alleges that these automobiles were traveling at such speeds and distances in relation to each other as-to render a collision impossible. The imperfection in this petition is not a mere duplicity or inconsistency in form, but its allegations are repugnant in matter of substance, and so repugnant as to neutralize and destroy each other. Adams v.
Contradictory allegations in the petition have been construed most strongly against the pleader so as to negative a general allegation of negligence in Wright v. Shirley, 46 Ga. App. 655 (168 S. E. 915). Construing the allegations in the instant case most strongly against the pleader, the petition shows that a collision between the oncoming vehicles could not have occurred.
I think the court erred in overruling the general demurrers to plaintiff’s petition.
Reference
- Full Case Name
- SIKES, Administrator v. NORRIS Et Al.
- Cited By
- 3 cases
- Status
- Published