Wofford v. Tinney

Felton, J. The defendant contends that the petition shows on its face that the plaintiff’s own negligence was the proximate cause of the collision and for this reason the court properly sustained the general demurrer and dismissed the action. We do not agree with him. The petition does not allege facts showing any specific acts of negligence on the plaintiff’s part or that the plaintiff in the exercise of ordinary care could have discovered the defendant’s negligence and could have avoided the consequences thereof, and it is not necessary for the plaintiff to negative his negligence. Bach v. Bragg Bros. & Blackwell, Inc., 53 Ga. App. 574, 577 (186 S. E. 711). Besides, except in clear and indisputable cases, of which this is not one, questions of negligence, comparative negligence, and proximate cause are questions for a jury. For a case involving practically the same facts as the instant case (except as to the hour of the collision), see Callaghan v. Elliott, 84 Ga. App. 90 (65 S. E. 2d 633). The court erred in sustaining the general demurrer and in dismissing the action. Judgment reversed. Sutton, C. J., and Worrill, J., concur.