Rome Railway & Light Co. v. King , 30 Ga. App. 231 ( 1923 )

Jenkins, P. J.

1. “ Where a petition states the facts upon which the claim of negligence is based, a general allegation in the petition, following a.statement of the facts relied upon to show negligence, will be construed to have reference to the particular facts pleaded; and, so construed, it is not subject to special demurrer.” Fuller v. Inman, 10 Ga. App. 680 (4) (74 S. E. 287). The petition in the instant case having fully and clearly set forth the particular acts of negligence complained of, and the conclusion not. only having natural reference to the particular facts thus pleaded, but by the language of the pleadings being specifically based thereon, the special demurrer seeking to strike as mere conclusions the allegations contained in the 10th and 11th paragraphs of the petition are without merit.

2. While it is true that, where a petition plainly shows on its face an absence of liability on the part of the defendant, either because the injury was occasioned by the plaintiff’s own negligence, or because by the exercise of ordinary care he could have avoided the consequences of defendant’s negligence, or because the acts of negligence charged against the defendant could not legally constitute the proximate cause of the injury, it can be attacked by general demurrer as failing to set forth a cause of action (Ga. Pacific Ry. Co. v. Richardson, 80 Ga. 727 (7 S. E. 119); Hill v. L. & N. R. Co., 124 Ga. 243 (52 S. E. 651, 3 L. R. A. (N. S.) 432); Freeman v. Savannah Electric Co., 130 Ga. 449, 451 (60 S. E. 1042); Central of Ga. Ry. Co. v. Larsen, 19 Ga. App. 413, 418 (91 S. E. 517); Shaw v. Mayor &c. of Macon, 6 Ga. App. 306 (64 S. E. 1102); So. Ry. Co. v. Barber, 12 Ga. App. 286 (77 S. E. 172); Hester v. Savannah Electric Co., 130 Ga. 454 (60 S. E. 1045); Gillespie v. Andrews, 27 Ga. App. 509 (108 S. E. 906); Simmons v. Seaboard Air Line Ry., 120 Ga. 225 (47 S. E. 570, 1 Ann. Cas. 177); Central of Ga. Ry. Co. v. Edwards, 111 Ga. 528 (36 S. E. 810); Mayor &c. of Macon v. Dykes, 103 Ga. 847 (31 S. E. 443); Andrews v. Kinsel, 114 Ga. 390 (2) (40 S. E. 300, 88 Am. St. Rep. 25); Postal Telegraph Co. v. Kelly, 134 Ga. 218 (67 S. E. 803); Charleston &c. Ry. Co. v. Patton, 22 Ga. App. 554 (96 S. E. 504) ), it is nevertheless the general and well-settled rule that the determination of questions of negligence, including contributory negligence, lies peculiarly within the province of the jury, and in the exercise of this function the question as to what constitutes the proximate cause of an injury complained of may be directly involved as one of the essential elements and disputed issues in the ascertainment of what neligence, as well as whose negligence, the injury is properly attributable to, with the consequence that such question can be resolved on demurrer only in plain and indisputable cases. Ga. Ry. & Power Co. v. Ryan, 24 Ga. App. 288 (1) (100 S. E. 713); Hardwick v. Figgers, 26 Ga. App. 494 (106 S. E. 738). In the instant ease these questions could not properly be determined by the court on demurrer.

Decided April 18, 1923.

3. The court did not err in refusing to hold the ordinance pleaded void for uncertainty. See, in this connection, Strickland v. Whatley, 142 Ga. 802 (1) (83 S. E. 856); Central of Ga. Ry. Co. v. Larsen, 19 Ga. App. 413, 420 (91 S. E. 517).

4. The allegation in paragraph 13 of the petition, disclaiming responsibility for any possible negligence which the driver of the automobile might have been guilty of at the time plaintiff was struck as she was attempting to board the defendant’s car, was mere surplus-age, and should have been stricken on the special demurrer pointing out this fact. There is no presumption that the plaintiff in such a suit is responsible for the negligent conduct of third persons, and consequently the plaintiff’s disclaimer of responsibility for their acts and conduct could have no bearing upon the merits of the cause. This is true although one of the .main questions which may be involved is whether or not the acts and conduct of such third persons constituted the proximate cause of the injury. If such be the case, the plaintiff’s right would fail, not on the theory that she is made to assume responsibility for the acts of third persons, but for the reason that the same rule of responsibility applies to the plaintiff and the defendant alike, which is that neither is accountable save for the natural and reasonable consequences of his own neligence.

Judgment affirmed, with direction that the allegation referred to in paragraph 4 of the syllabus be stricken.

Stephens and Bell, JJ., concur. Lamar Camp, Linton A. Dean, for plaintiff in error. Porter <& Mebane, contra.