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Action for damages. Bulloch Superior Court. Before Judge Renfroe. April 10, 1959.
GARDNER, Presiding Judge.
Questions of diligence and negligence, whose negligence and what negligence, are ordinarily questions peculiarly for the determination of a jury, and such is required in the instant case.
Mrs. M. P. Martin, Sr., brought suit in the Superior Court of Bulloch County against W. M. Sheppard to recover damages for the death of her husband which the plaintiff in her petition, as amended, alleged resulted from and was caused by the negligence of the defendant, and his failure to use due and ordinary care at said time and place. The plaintiff alleged that her deceased husband was driving his 1957 Ford pickup truck along U. S. Highway 80 in an easterly direction around 6:20 p.m. on January 17, 1958; that the sun had set and it was then completely dark; that the deceased was proceeding in such truck and in the proper lane and at a lawful and reasonable speed, and that her husband had the lights of his truck burning; that at such time the defendant Sheppard was also traveling easterly along said highway and in the same traffic lane and driving a tractor having a "fork lift", commonly used by the defendant in the sawmill business; that there were no lights, lamps or other illumination upon said tractor with the fork lift; that said vehicle was not visible to the plaintiff's husband, it being dark and the vehicle having no lights, as required under the law; that the plaintiff's husband, so driving his Ford truck did thereupon run directly into this unlighted and large vehicle, which he could not see and which was directly ahead of him and of which he had no knowledge and no means of acquiring knowledge of its presence; that the defendant was negligent and failed to use due care in operating said unlighted vehicle after dark along said highway, and that same constituted a dangerous obstruction and was the cause of the death of plaintiff's husband who was unable to see the tractor and fork lift in time to avoid running his truck directly into it. The plaintiff alleged further that the death of her husband was proximately caused by the negligence of said defendant in the operation of said vehicle at said time and place. She alleged that the death of her husband resulted from injuries received thereby and prayed for damages.
The said defendant Sheppard filed his general and special demurrers to the petition as amended, and the trial court on April 16, 1959, denied and overruled such demurrers of the defendant, general and special. It is to this judgment that the case is here for review.
It is true, as held in Rogers v. Johnson, 94 Ga. App. 666, 678 (96 S. E. 2d 285), cited by counsel for the defendant that the plaintiff's right to recover for the death of her husband is the same right as would have accrued to her husband had he survived the collision.
It is our opinion that the vehicle operated by the defendant was not exempted under the provisions of Code (Ann.) 68-1701 (c). This case does not reflect facts on all fours with the facts in Southeastern Liquid Fertilizer Co. v. Mock, 92 Ga. App. 270 (88 S. E. 2d 531). In that case a Farmall Tractor was involved. Here we have a fork lift, used to move lumber or timber. Code (Ann.) 68-1502 (2b) defines a farm tractor as "every motor vehicle designed and used primarily as a farm implement for drawing plows, mowing machines, and other implements of husbandry." The vehicle in the instant case did not fall within the provisions of the exclusions as to certain farm vehicles hereinabove mentioned.
For the above reasons the question now before this court turns on whether or not the negligence of the defendant constituted the proximate cause of the plaintiff's injuries and damages, and whether or not the injury could have been avoided by care on the part of the plaintiff for his own safety.
It is true that ordinarily no duty devolves upon a plaintiff to avoid the consequences of the defendant's negligence until he knows, or by the exercise of ordinary care, could discover that he is exposed to perils created by the negligence of the defendant. See Western & Atlantic R. Co. v. Ferguson, 113 Ga. 708 (2) (39 S. E. 306, 54 L. R. A. 802); Crawford v. W. & A. R. Co., 51 Ga. App. 150 (179 S. E. 852) and Rogers v. Johnson, 94 Ga. App. 666, supra. It is also true that a driver is not charged with the duty to anticipate illegal or negligently placed barriers on the roadway, or lack of legal barriers. See Trammell v. Matthews, 84 Ga. App. 332, 337 (66 S. E. 2d 183), and Rogers v. Johnson, supra. In the Rogers case, as in the case at bar, the question involved is whether or not the vehicle on the roadway was there lawfully or unlawfully; whether or not the vehicle was the proximate cause of the death of the plaintiff's husband, and whether or not the plaintiff's husband exercised sufficient care to provide for his own safety. It must be kept in mind that the care required of a prudent person is that care which is necessary under the particular circumstances involved. The rule has been thoroughly established by the appellate courts many times that negligence, whose negligence and what negligence are questions ordinarily peculiarly for the determination of a jury, and the appellate courts have declined time, and time again to solve such questions on demurrer except in cases where such questions appear palpably clear, plain and indisputable. See Alford v. Ziegler, 65 Ga. App. 294 (16 S. E. 2d 69); Moore v. Shirley, 68 Ga. App. 38 (3) (21 S. E. 2d 925); Georgia Power Co. v. Blum, 80 Ga. App. 618 (57 S. E. 2d 18); Trammell v. Matthews, supra, and Rogers v. Johnson, supra.
In view of this whole record these special demurrers are not meritorious and were properly overruled by the trial court.
Judgment affirmed. Townsend and Carlisle, JJ., concur.
Neville & Neville, Wm. J. Neville, W. G. Neville, contra.
Allen & Edenfield, Francis W. Allen, B. Avant Edenfield, for plaintiff in error.
Saturday May 23 00:54 EDT

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