Drake v. McGlashan

Carlisle, Judge. Questions of negligence and diligence including ordinary negligence and ordinary diligence and gross negligence and slight diligence (Rowe v. Camp, 45 Ga, App. 794 (1), 165 S. E. 894; Frye v. Pyron, 51 Ga. App. 613 (1), 181 S. E. 142), and of cause and proximate cause and whose negligence constituted the proximate cause of the plaintiff’s injuries are, except in plain, palpable and indisputable cases, solely for the jury, and the courts will decline to decide such questions on demurrer unless reasonable minds cannot differ as to the conclusion to be reached. Long Construction Co. v. Ryals, 102 Ga. App. 66 (1) (115 S. E. 2d 726). “The simplest test of the sufficiency of a petition against general demurrer is whether the defendant can admit all that is alleged and still escape liability. Georgia R. & Bkg. Co. v. Rayford, 115 Ga. [97] 937 (42 S. E. 234); Pullman Palace Car Co. v. Martin, 92 Ga. 161 (18 S. E. 364).” Harvey v. Zell, 87 Ga. App. 280, 284 (d) (73 S. E. 2d 605). The petition in this case being a suit against two defendants alleged to have been joint tortfeasors, alleges that the plaintiff’s husband was killed as the result of the concurring negligence of the two defendants; that the defendant Drake was the host driver of the automobile in which the plaintiff’s husband was riding; that he was negligent in driving his automobile at 90 miles per hour in the night time; in operating it across the white center line and on the left-hand side of the road; in failing to keep a lookout for approaching cars; and that such negligence was gross negligence which proximately caused him to collide with the truck of the defendant trucking company, the driver of which was also negligent in specified particulars, which collision inflicted injuries resulting in the death of the plaintiff’s husband. Under the rules of law set out above, the petition stated a cause of action against the defendant Drake and the trial court did not err in overruling his general demurrer. Decided January 31, 1961. Sharpe & Sharpe, Bouhan, Lawrence, Williams, Levy & McAlpin, for plaintiff in error. R. L. Dawson, Joseph T. Grice, Memory, Barnes & Memory, contra. Judgment affirmed. Townsend, P. J., Frankum and Jordan, JJ., concur.