Broadnax v. Nunn

Quillian, Judge. Counsel for the defendant insists that the petition fails to show that the defendant violated any legal duty he owed the plaintiff, and the judge erred in not sustaining the general demurrer. The petition alleged: that the plaintiff stopped and ascertained that Highway No. 102 was clear of traffic and then proceeded to cross the same; that the defendant, driving at a high and dangerous rate of speed struck the plaintiff’s vehicle [866] after the larger portion of it had crossed the center line; that the collision was due to the defendant’s negligence in failing to keep his automobile under proper' control. While the petition may have been subject to special demurrer, as against a general demurrer, it set forth facts sufficient to present a jury question as to whether the defendant negligently failed to keep his automobile under proper control and whether this negligence was the proximate, cause of the collision. Southeastern Express Co. v. Nightingale, 33 Ga. App. 515 (3) (126 S. E. 915); Atlantic Co. v. Jones, 86 Ga. App. 515, 521 (71 S. E. 2d 824). While it is true the defendant was traveling an upgrade and would not have- been able to see the' plaintiff until he reached the crossing, this did not relieve the defendant of the duty to kéép his vehicle under proper control at all times. Code (Ann.) § 68-1626 (a, c). ■ ■ ■ The judge did'not err in. overruling the general'demurrer to the petition. ■' Judgment affirmed. Felton, C. J., and Nichols, J., concur.