Daniell v. McGuire

74 S.E.2d 378, 87 Ga. App. 491, 1953 Ga. App. LEXIS 777

• Court: Court of Appeals of Georgia
• Decided: January 28, 1953
• Docket: 34351
• Status: Published

Opinion

Felton, J.

1. (a) The court did not err in overruling the general demurrer to the petition. The petition does not show by the facts alleged that as a matter of law the plaintiff by the exercise of ordinary care, could have discovered and avoided the consequences of the defendant’s negligence.

(b) While it is not ordinarily the duty of an individual to provide for the safe condition of city streets and to place warning signs therein, the facts alleged state a case against the defendant, in that it is alleged that the defendant unlawfully dug the ditch without the knowledge of the city and caused a dangerous condition to exist in the street..,,.

2. A general demurrer does not reach the failure to allege the proper measure of damages. Jones v. Cedartown Supply Co., 65 Ga. App. 80, 83 (15 S. E. 2d, 268); Atlantic Coast Line R. Co. v. Tifton Produce Co., 50 Ga. App. 614 (3) (179 S. E. 125).

3. The allegation that the plaintiff’s automobile was used as a taxicab and that the use of the same was worth $15 a day to the plaintiff is not subject to special demurrer. Pleading of evidence by which ultimate facts must be proved is not required.

4. Other exceptions not argued or insisted on are treated as abandoned. The court did not err in overruling the demurrers to the petition.

Judgment affirmed.

Sutton, C. J., and Worrill, J., concur. Joseph S. Crespi, for plaintiff in error. D. B. Howe, contra.