Ivey v. Symms

Felton, J.

The court erred in sustaining the general demurrer to the petition. The allegations of the petition do not show unequivocally and as a matter of law that the plaintiff ran into the path of the defendant’s oncoming vehicle under circumstances under which the defendant could not have avoided injuring her by the exercise of ordinary care. The petition alleges that the plaintiff got within two feet of the south side of the road toward which she was traveling. Since the petition does not show facts which demand the finding that the plaintiff’s conduct was such as to make it impossible for the defendant to avoid injuring the plaintiff by the exercise of ordinary care, the questions involved should be submitted to a jury. In view of what has been said, we do not think that the cases cited in the dissent are applicable to the facts in this case.

The court erred in sustaining the general demurrer to the petition.

Judgment reversed.

Gardner, P.J., Townsend and Carlisle, JJ., concur. Sutton, C.J., and Worrill, J., dissent.