Dixon v. Johnson

109 S.E. 519, 27 Ga. App. 699, 1921 Ga. App. LEXIS 372

• Court: Court of Appeals of Georgia
• Decided: November 18, 1921
• Docket: 12385
• Status: Published

Opinion

Jenkins, P. J.

1. The petition is not defective for the reason assigned, that it fails to show that the alleged negligent act of the defendants’ servant was done within the scope of his duties and employment. Not only would it seem that this necessary element of liability is shown by reasonable inference from the allegations made, but it is expressly alleged.

2. Whether the defendants’ alleged act of negligence was the proximate cause of the injury, as claimed by the plaintiff, or whether the injury ivas caused by the negligence of the plaintiff in failing to observe and avoid contact with the alleged obstruction, was properly left for determination by the jury.

3. The grounds of special demurrer are without merit.

(a) The petition alleges that the plaintiff, at the time of his alleged injury, was driving his car along a public highway. A traveler, in the absence of notice to the contrary, has a right to use it and to assume that it is reasonably safe and free from obstructions. Nothing shown in the petition could indicate that the plaintiff was' a trespasser, on account of the county authorities’ having closed the highway pending the making of repairs thereon for it by the defendant. On the contrary, the petition shows that “there ivas no other barrier or obstruction of any kind or character, or anything else, to indicate that said public road was closed, or to call attention to the fact that said wire was so suspended.”

(b) The nature and character of the alleged obstruction, as consisting of a “ small cable wire,” which the petition alleged the defendants had stretched across the highway, is sufficiently described. Especially is this true since more detailed information as to its character would lie more particularly within the knowledge of the defendants, who it is alleged had strung it.

4. The court did not err in overruling the demurrer to the petition as amended. Judgment affirmed.

Stephens and Hill, JJ., concur.

Action for . damages; from city court of Savannah — Judge Freeman. March 7, 1931.

From the petition as amended it appears that the defendants, acting under a contract made with the county authorities of Chatham County, were engaged in surfacing, a portion of a public highway known as the Augusta road. For the purpose of closing the highway to traffic the defendants, through one of their servants, moved up a distance of about two miles beyond the point where the work was going on, and stretched a “ small cable wire ” across the road, at just such a height as would catch the top of an automobile moving along the road at that point. It is’ alleged that the plaintiff did not know of such obstruction and had no reason to anticipate its presence, and “ there was no other barrier or obstruction of any kind or character, or anything else, to indicate that said public road was closed, or to call attention in any way to the fact that said wire was so suspended;” and that, not seeing the wire until to late to avoid it, he ran into it with his car, and thereby received specified injuries.

Lawrence & Abrahams, for plaintiffs in error. Travis & Travis, contra.