Silver Fleet Cab Co. v. Bauer , 88 Ga. App. 455 ( 1953 )

Felton, J.,

dissenting. The petition, construed against the pleader on demurrer, fails to set forth a cause of action. In the absence of an allegation to the contrary, it must be assumed that the driver of the automobile in which the plaintiff was riding was intelligent and laboring under no physical disability. State Highway Dept. v. Stephens, 46 Ga. App. 359 (167 S. E. 788). It must also be assumed for the same reason that the weather was clear and the road level (Bassett v. Callaway, 72 Ga. App. 97, 33 S. E. 2d 112); that the automobile in which the plaintiff was riding was equipped with headlights shining 500 feet ahead {A. C. L. R. Co. v. Dolan, 84 Ga. App. 734, 67 S. E. 2d 243); and that the driver of the automobile in which the plaintiff was riding was familiar with the highway (Evans v. Ga. Northern R. Co., 78 Ga. App. 709, 52 S. E. 2d 28). In view of the conflicting allegations as to where the taxicab was parked, to wit, that it was parked in the lane designated for traffic and in a lane designated for traffic, the petition will be construed as alleging that the taxicab was parked in a lane designated for traffic and that the lane was the cab’s lane when headed in the opposite direction from the car in which the plaintiff was riding. In view of the expression in the alternative that the cab was parked “at or near a curve,” the petition must be construed to allege that it was parked near a curve (Doyal v. Russell, 183 Ga. 518 (3), 189 S. E. 32). And lastly, the petition must also be construed to allege that the road was a public road wide enough for two-way traffic. In view of such a construction of the petition, the general allegation that the cab was parked “where approaching traffic could not see it” is a mere conclusion which would not be supported by proof of the general and indefinite allegations of the petition, as in such a case a jury could not ascertain where the cab was parked, whether on the left or right side or in the middle of the road, etc.