Moffett v. McCurry

(After stating the foregoing facts.) The defendant assigns error on the overruling of its general demurrer, which contended that it affirmatively appeared in the petition that the plaintiff could have avoided any injury and damage which he may have sustained had he exercised ordinary care and diligence. “Questions as to diligence and negligence, including contributory negligence and what negligence constitutes the proximate cause of the injury complained of, are questions peculiarly for the jury, such as this court will decline to solve on demurrer except in palpably clear, plain, and…