Matheson v. Charles R. Shepherd, Inc.

Gardner, Presiding Judge. We are concerned here only with the sustaining of the general demurrer as to the defendant Shepherd. If a petition shows a duty on the part of a defendant, a breach of that duty and damages resulting from that breach, the petition should not be dismissed on general demurrer. See Harvey v. Zell, 87 Ga. App. 280 (73 S. E. 2d 605). Where a contract calls for a contractor to maintain adequate barricades, etc. and where such contractor fails to do so* and injury or damages result from such failure, then a petition against such defendant should not be dismissed on general demurrer. In the case of Trammell v. Matthews, 84 Ga. App. 332 (66 S. E. 2d 183) the. construction company did not exercise ordinary care to protect the public from injuries because the construction was defective. However ini the instant case a member of the general public came upon a portion of the road in question here. There was no defect in the road. Moreover the petition alleges that the defendant Boling, the driver of the vehicle which went upon the expressway, was driving at a speed in excess of 70 miles per hour; that he was not keeping a proper lookout ahead and did not give any warning to the driver of the vehicle in which the plaintiff was riding and did not have his own vehicle under control so that he would be able to avoid striking the vehicle in which the plaintiff was riding. It is true that the defendant was to erect barricades, etc. [178] ■It appears from the record before us that the section used was in suitable condition for travel and was so being used. The contractor could not close a section of .the road to workers and subcontractors going to and from work according to the allegations of the petition. Paragraph 7 of the petition alleges that the “northwest bound side of the expressway was protected.”. The defendant Boling was traveling in that direction and should have noted that the road was not open to the pubilc. It is true that in cases where ■a bridge is out, for instance, and there are no barricades or warning devices of any nature, such constitutes actionable negligence, but in the instant case there was no defect in the road. This court and the Supreme Court have had questions similar to this one for consideration many times. Such questions have been determined always according to the facts of the respective cases. ■ However, in the instant case it appears palpably clear, plain and indisputable that the alleged reckless driving of the defendant Boling was the proximate cause of the injury. In view of .the pleadings before us in this case the trial court did not err in sustaining the general demurrer as to the defendant Shepherd. Judgment affirmed. Carlisle, J., concurs. Townsend, J., concurs specially.