52 Ga. App. 646 | Ga. Ct. App. | 1936
Sylvester Spivey brought suit for damages against Reddy-Waldhauer-Maffett Company and M. G. Burnsed, for personal injuries resulting from his running his automobile against a parked truck owned by the defendant company and parked on the highway by defendant Burnsed. He obtained a verdict against both defendants. The defendants come to this Court by separate bills of exceptions. There is no issue as to agency, nor is there any issue arising out of agency, such as the servant deviating from the performance of the master’s business, the extent of the alleged deviation, his having resumed such performance at the time of the injury, or ratification of the servant’s acts by the master. The defendant Burnsed assigns error on the overruling of his general demurrer to the petition and on the overruling of his motion for a new trial.
The assignment of error on the overruling of the demurrer is without merit, as the verdict was based solely on count 3 of the petition, and, so far as is disclosed by the record, there was no demurrer to count 3. The defendant filed a general demurrer to the petition on March 3, 1934; the court overruled this on May 24, 1934; and exceptions pendente lite to this ruling were filed on June 6, 1934. The third count of the petition was added by amendment, allowed and filed, on June 16, 1934, “subject to demurrer,” and the record discloses no demurrer filed thereafter. The court charged the jury that “counsel for the plaintiff have concluded, and I think correctly, that the last of these three counts summarizes and includes all of the allegations of negligence which they make against the defendants, and, therefore, the case you are trying and the case upon' which you will find a verdict, is count three; or is contained in the count three. So, I don’t send out with you any portion of the declaration, except this count three.” The verdict was: “We the jury find in favor of the plaintiff in the sum of $1500, fifteen hundred dollars, against both defendants on the third count.” Therefore, the petition as contained in counts 1 and 2, and the demurrers thereto are not considered.
The motion for new trial contains only the usual general grounds. The allegations of the petition, so far as they relate to this case, are in substance as follows: That the defendant Reddy-Waldhauer-Maffett Company, a corporation, sold and delivered house
The evidence introduced by the plaintiff substantiated the material allegations of the petition. It .showed that the concrete road at the point where the truck was parked was only 16 feet wide; that there were 4 or 5 feet of berm or shoulder to the right of the concrete paving where the truck could have been parked; that the plaintiff was blinded by the bright light of an approaching vehicle; that he saw a very dim white light which appeared to be 150 or 175 yards away, and being white appeared to be a light that he was meeting (the law required vehicles to have a white light in front and a red light in the rear); that the defendant’s truck was parked with all four wheels on the concrete; that “there was no red light on the rear of the truck at all;” that the right hand rear wheel of the truck was between 16 and 24 inches from the right edge of the concrete, which “threw the left hand rear wheel over into the road,” and the body of the truck still further into the road; that the truck was 7 or 8 feet wide, and the road was only 16 feet wide. The plaintiff introduced photographs showing that the truck could have been parked to the right of the concrete paving. It suffices to say that the defendants introduced evidence which conflicted with that of the plaintiff and which, if it had been accepted by the jury, would have authorized a verdict for the defendants. However,' the jury accepted the evidence of the plaintiff, which authorized the verdict in his favor.
It is a matter of common knowledge that the glare of bright headlights of an automobile' on a public highway at night will temporarily impair the vision of the driver of an approaching automobile. The defendants knowing this, left the truck in a position where it became an instrument of danger to one traveling on the highway. Whether the plaintiff, under the existing eir
There was evidence to authorize the jury to find that the proximate cause of the injury was the negligent parking of the truck, at night, on the concrete portion of the public highway, without a red light on the rear of the truck, without warning, and with both rear wheels on the concrete paving which was only 16 feet wide and to the right of which there was sufficient space to park the truck; and the court did not err in overruling the motion for new trial.
Judgment affirmed.