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Action for damages. Bulloch Superior Court. Before Judge Renfroe. March 18, 1958.
GARDNER, Presiding Judge.
James Groover brought suit against W. O. Griner and Bulloch County, Georgia. The defendant Griner's demurrer on the general grounds only was overruled, and he filed his bill of exceptions to this court. Bulloch County did not file on appeal.
The petition is substantially as follows: Paragraph 1 alleges that the defendant Griner is a resident of Bulloch County, Georgia.
Paragraph 2 alleges that the plaintiff has a right of action against the defendants due to their joint negligence and is entitled to recover damages in the amount of $10,000.
Paragraph 3 alleges that on January 31, 1957, the plaintiff, in the course of his employment, was riding on the back of a 1956 Ford truck owned and being driven by his employer, the defendant Griner; that they were traveling east at a speed of about 30 miles per hour on a county-maintained public road in Bulloch County near the defendant Griner's home and that the plaintiff, being a common laborer, had neither the right nor the duty to control the operation of the vehicle in any way and in no way in control thereof.
Paragraph 4 alleges that the plaintiff, the defendant Griner and two other employees, under the defendant Griner's direct supervision, had loaded the truck with a total of 4,800 pounds of bricks with slightly more stacked to the right than to the left on the bed of the truck, causing the load to be unevenly distributed and the truck to lean slightly to the right.
Paragraph 5 alleges that the other two employees were allowed to ride in the cab of the truck with the defendant Griner but that the plaintiff was required to ride out on the open bed of the truck and in the exercise of extraordinary care for his safety he was in a squatting position holding onto said truck up against the back of the cab as near as possible.
Paragraph 6 alleges that while traveling in this condition in the rain on the public road which was wet and in poor condition, the truck came upon a county-maintained public bridge built by the defendant Bulloch County and that said bridge was wet and slick and in a weakened condition.
Paragraph 7 alleges that the defendant Griner did carelessly and negligently and with poor vision drive said truck onto the bridge with the brick load leaning to the right and with the right wheels of the truck being to the right of the right runners of the bridge and that the bridge was in a weakened condition and not suitable for the carriage of the load being conveyed, causing the right side of the bridge to cave in and causing the truck to overturn on its right side, the bricks falling upon the plaintiff who was thrown out upon the ground and completely covered with bricks, thus causing him multiple injuries.
Paragraph 8 alleges that as a result of the joint negligence of the defendants the plaintiff was confined to the hospital for forty days, incurring bills in the amount of $865.35.
Paragraph 9 alleges further doctor bills incurred as a result of the injury in the amount of $265.
Paragraph 10 alleges that prior to the injury the plaintiff was employed as a laborer at $3.00 per day six days per week; that he has been unable to work since the collision and that he is entitled to recover $756.
Paragraph 11 alleges that the plaintiff will not be able to work for the next two years due to the injury and that he is reasonably entitled to the sum of $1,932.
Paragraph 12 describes further pain and suffering for which the plaintiff alleges he is entitled to recover $6,181.65.
Paragraph 13 alleges that the upset happened suddenly and without notice to the plaintiff; that when he realized the truck was about to upset he made every effort to jump to safety but was caught by the falling brick and there was nothing he could do to prevent said injury and damage.
Paragraph 14 alleges that said public bridge was constructed by the defendant Bulloch County ten years ago and is not and has never been since its construction sufficiently strong to be safe to carry the loads of farm machinery, fertilizer, pulpwood and other heavy loads customarily carried in the rural areas of said county and for which purpose the bridge was constructed; that the county commissioners of said county have knowledge of these facts and are charged with the responsibility of erecting and maintaining county bridges; that they well knew or by the exercise of ordinary care should have known the weakness of said bridge; that the county, through its duly elected and appointed officials and employees was negligent and careless in the construction and maintenance of said bridge, and that said negligence jointly with the negligent acts of the defendant Griner was the proximate cause of the injuries sustained by the plaintiff.
Paragraph 15 reiterates the alleged negligent acts of the defendant Griner and prays for judgment against the defendants in the sum of $10,000.
Counsel for the defendant Griner cite and rely on Shaw v. Mayor &c. of Macon, 6 Ga. App. 306, 307 (64 S. E. 1102) as authority to show that this case should be reversed. In that case the court stated that the petition there showed clearly that the negligence charged against the defendant was not the proximate cause of the plaintiff's injury but that the proximate cause of the injury was the act of the driver of the buggy. After reading the original record in that case we agree that the facts alleged there were sufficient to warrant the sustaining of the general demurrer, and this is true of the many cases cited therein. However, even in the Shaw case, the court said: "No inflexible rule of law can be laid down for determining what would be the proximate cause of an injury. The question must be solved by the facts of each particular case. It may be stated generally that the negligence upon which a recovery can be predicated must be the chief preponderating and proximate cause of the injury." In Taylor v. Atlanta Gas Light Co., 93 Ga. App. 766 (1a) (92 S. E. 2d 709) this court said: "The general rule is that if, subsequently to an original wrongful or negligent act, a new cause has intervened, of itself sufficient to stand as the cause of the misfortune, the former must be considered as too remote . . ." It is obvious that this decision will not aid the defendant, under the allegations of the petition in the instant case. In Gulf Oil Corp. v. Stanfield, 213 Ga. 436 (99 S. E. 2d 209) the record shows clearly that an act of a third person was the direct and proximate cause of the damage. When such affirmatively appears, it follows that the overruling of a general demurrer is correct. For the same reasons the following cases have no application, in view of the pleadings in the instant case: Southland Butane Gas Co. v. Blackwell, 211 Ga. 665 (88 S. E. 2d 6), Fricks v. Knox Corp., 84 Ga. App. 5, 10 (65 S. E. 2d 423), Beasley v. Elder, 88 Ga. App. 419 (76 S. E. 2d 849), and Rogers v. Johnson, 94 Ga. App. 666, 667 (96 S. E. 2d 285).
We do not interpret the petition to plead in the alternative or disjunctive and thus consider the entire pleadings to be bad and subject to general demurrer. Hence the following cases have no application: Richards & Associates, Inc. v. Studstill, 212 Ga. 375 (93 S. E. 2d 3), and Belch v. Sprayberry, 97 Ga. App. 47, 50 (101 S. E. 2d 870).
Code 105-603, cited by counsel for the defendant Griner, reads as follows: "If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover. In other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained." While it is incumbent upon the plaintiff to use the degree of care necessary under the circumstances to avoid injury to himself, until it affirmatively appears from the petition that the plaintiff used such degree of care, this question cannot be determined by demurrer but is a jury question. Questions of negligence, whose negligence and what negligence present issues of fact for determination by a jury, and furnish no ground for sustaining a general demurrer to a petition. See Atkinson v. Yarborough, 13 Ga. App. 781 (80 S. E. 29). See the many decisions annotated under Code 105-603, catchwords "Jury" and "Ordinary care."
We consider it well to mention an allegation of negligence against the defendant Griner which was included in the petition. That allegation is: "In driving upon said bridge in such a manner as to cause the right wheels of said truck to go to the right of the right-hand runners of said bridge." The runners were built on top of the main floor of the bridge, said runners having been placed there for the purpose of additional support for the wheels of the vehicle. This allegation of negligence, together with the other acts of negligence alleged, is sufficient to withstand a general demurrer.
The causative factors involved, the degree of care required of the plaintiff and of the defendant, under the pleadings in the instant case are questions to be determined by a jury. The court did not err in overruling the general demurrer to the petition.
Judgment affirmed. Townsend and Carlisle, JJ., concur,
Ralph U. Bacon, Neville & Neville, contra.
Francis W. Allen, Bouhan, Lawrence, Williams, Levy & McAlpin, Kirk McAlpin, for plaintiff in error.
DECIDED JUNE 23, 1958.
Saturday May 23 01:16 EDT

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