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MCDANIEL et al. v. GOSSETT.
42529.
Action for damages. Clayton Superior Court. Before Judge Banke.
BELL, Presiding Judge.
The trial court erred in overruling defendant's general demurrer to plaintiff's petition.
Gossett filed this suit against James McDaniel, Sylvia McDaniel and Marvin St. Clair to recover for personal injuries sustained in an automobile collision caused by the negligence of Sylvia McDaniel and Mike St. Clair, sixteen-year-old son of defendant Marvin St. Clair. Defendants James and Sylvia McDaniel took this appeal from the judgment of the trial court overruling their demurrers to plaintiff's petition. The petition alleged that plaintiff was driving his car on a street in College Park, Ga., and approaching an intersection. A car ahead of plaintiff in the same lane of traffic had stopped and was signaling a left turn. Plaintiff stopped his car. Mrs. McDaniel, in the same lane of traffic, brought the McDaniel car to a stop 8 to 10 feet behind plaintiff's car. Mike St. Clair then drove the St. Clair car into the rear of the McDaniel car at a speed in excess of 40 miles per hour, knocking the McDaniel car forward and into the rear of plaintiff's car. Plaintiff alleged that "the defendant Sylvia A. McDaniel and by and through her, her husband, James A. McDaniel, were negligent in the following particulars: (a) In failing to have the said McDaniel automobile under control so as to avoid striking the automobile of petitioner from the rear (b) In failing to have the brakes of the said McDaniel automobile on while it was sitting in a stopped position behind petitioner's automobile . . . (e) In failing to apply the brakes of the McDaniel automobile after it was struck from the rear by the St. Clair automobile . . ."
Construing the petition most strongly against the pleader, if an inference unfavorable to the plaintiff may be fairly drawn from the facts stated in the petition, that inference will prevail in determining the rights of the parties. Johnston v. Clement A. Evans & Co., 111 Ga. App. 659, 661 (143 SE2d 38).
The allegation that Mrs. McDaniel was negligent in failing to have her car under control must yield to other allegations stating that she had brought her car to a stop behind plaintiff's car.
Where the danger of collision was not apparent or reasonably to be apprehended, the allegation the Mrs. McDaniel was negligent in failing to keep her brakes engaged while her car was stopped behind plaintiff, fails to state any breach of duty to plaintiff. An automobile driver has the right to assume that others driving vehicles will observe the rules prescribed by law governing the operation of vehicles. Bach v. Bragg, 53 Ga. App. 574, 577 (186 SE 711); Greenlee v. Chastain, 112 Ga. App. 813 (1) (146 SE2d 378). In the absence of knowledge, one who is rightfully using the highway or street is not required to anticipate that some other user will unexpectedly violate the law. Eubanks v. Mullis, 51 Ga. App. 728, 731 (181 SE 604); English v. Georgia Power Co., 66 Ga. App. 363, 366 (17 SE2d 891); DeGolian v. Faulkner, 74 Ga. App. 866, 869 (41 SE2d 661).
The remaining particular, alleging that Mrs. McDaniel was negligent in failing to apply her brakes after her car was struck from the rear, contends that she was negligent in omitting to do an act which was obviously impossible under other allegations of the petition. The St. Clair car, when it struck the McDaniel car, was traveling in excess of 40 miles per hour, or 58 2/3 feet per second. The front of the McDaniel car was positioned only 8 feet from the rear of plaintiff's car. Taking into account applicable physical laws, the vehicles' resistance to impact and possible differences in the weights of the vehicles, it is obvious that McDaniel's vehicle would have traveled the distance of 8 feet after the initial collision in less than the reaction time required for Mrs. McDaniels to engage her brakes. It is also reasonable to infer that her normal reaction time would have been greatly increased by disorientation caused by the unexpected impact and the sudden propulsion of her vehicle. One cannot be charged with negligence in failing to do that which was not within his power to accomplish. London v. Atlanta Transit Co., 91 Ga. App. 753, 756 (87 SE2d 103).
Ordinarily questions of negligence are issues to be decided by a jury, but where the plaintiff's petition shows on its face that he is not entitled to recover against the defendant, and this question is raised by a general demurrer, it is the duty of the court to sustain the demurrer and dismiss the petition. 670 New Street, Inc. v. Smith, 107 Ga. App. 539, 543 (130 SE2d 773). Here the petition fails to show any negligence on the part of defendants James and Sylvia McDaniel. The trial court erred in overruling the general demurrer of these defendants.
Judgment reversed. Jordan and Pannell, JJ., concur.
Wilkinson & Nance, A. Mims Wilkinson, Jr., John O. Adams, Jr., for appellee.
Powell, Goldstein, Frazer & Murphy, Frank Love, Jr., Robert W. Patrick, Jr., for appellants.
ARGUED JANUARY 6, 1967 -- DECIDED APRIL 6, 1967 -- REHEARING DENIED APRIL 18, 1967 -- CERT. APPLIED FOR.
Friday May 22 19:29 EDT


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