53 Ga. App. 574 | Ga. Ct. App. | 1936
The plaintiff brought suit for damages against the defendants, master and servant, and made substantially this case: About 6 p. m. the plaintiff was driving his automobile, in which his wife and young son were riding, toward Winder and Atlanta on the Athens-Winder Highway, at about thirty-five miles per hour, at the same time that a motor-truck of the defendant, corporation, driven by its defendant servant, was proceeding in the same direction along the same road just ahead of the plaintiff’s automobile. After going over a hill and sufficiently beyond it to be obscured from other automobilists traveling in his rear in the same direction, that is about 600 feet from the crest of the hill, the defendant servant stopped the truck so that its left side was slightly over the center line of the road. When so stopped, the truck either had no tail-light burning, or, i£ so, it was insufficiently bright and could not be seen over two or three caT-lengths away, on account of the dimness thereof and the dark, misty, and rainy weather. The wooden truck-body was so nearly the color of the wet pavement of the highway as to be indistinguishable therefrom at night until within two or three car-lengths of it. While the plaintiff’s headlights were burning, he did not and could not see the defendant’s stationary truck until he was about twenty-five feet from it; and although his brakes were working and in proper condition, and he immediately tried to stop, his car ran against the rear of the truck, resulting in personal injuries to himself, damages to his ear, and personal injuries to Ms wife and his son, depriving him of their services and necessitating medical and hospital expenses. The plaintiff charged that the truck was being driven by the servant of the corporation defendant in and about its business and within the scope of the servant’s employment; that the defendants were negligent in allowing the truck to stand on the highway just beyond the crest of the hill, slightly beyond the center thereof, without any or with insufficient tail-lights to penetrate the rain, dark, and mist, and without any signal or warning of danger to approaching traffic on the highway, and in such close proximity to the top of the hill as not to give approaching traffic
The plaintiff would not be entitled to recover unless the defendants were negligent and their negligence was the proximate Cause of his injury and damage. Ordinarily what is negligence, contributory negligence, proximate cause, etc., are questions of fact for the determination of a jury; and it is only in plain and unmistakable cases that the court will undertake as a matter of law to solve such questions. Grant v. Royster Guano Co., 15 Ga. App. 758 (84 S. E. 161); Columbus Power Co. v. Puckett, 24 Ga. App. 390 (100 S. E. 800); Tybee Amusement Co. v. Odum, 51 Ga. App. 1 (179 S. E. 415). “If the plaintiff by ordinary care could
The mere fact that a plaintiff deriving a properly-equipped automobile at thirty-five miles per hour was unable to stop when “the weather was inclement, dark, misty, and it was raining,” over a wet pavement which was nearly the color of the body of the truck left standing in the highway, so that its left side was slightly over the center line of the road, headed in the same direction that the -plaintiff was traveling, or had been brought almost to a stop in the highway, at night, without any tail-light burning (in accordance with the State law), does not necessarily and as a matter of law establish negligence upon the part of the plaintiff; for the question still remains whether his conduct, in view of all the attendant circumstances and conditions, measures up to that of the ordinarily prudent person, which is the standard required by law in this State. Rozycki v. Yantic Co., 99 Conn. 711 (122 Atl. 717, 37 A. L. R. 582). This court can not hold that the petition shows that the plaintiff exercised so little care as to require a ruling as a matter of law that his negligence equaled or exceeded the negligence of the defendant, or extended in such a degree as to bar a recovery; nor can we hold, under the allegations of the petition, that the plaintiff did not set forth a case of negligence on the part of the defendant. L. & N. R. Co. v. Stafford, 146 Ga. 206, 209 (91 S. E. 26). It follows that the judge erred in sustaining the general demurrers and in dismissing the petition.
Judgment reversed.