54 Ga. App. 826 | Ga. Ct. App. | 1936
1. "A man can not heedlessly rush into grave peril of the existence of which he is perfectly aware, and then hold any one else, whether negligent or not, responsible for the consequences,” since thus to take "knowingly and deliberately . . a risk, the danger of which, to any person of common prudence, would have been plain and obvious,” constitutes such contributory negligence as will prevent a recovery. City of Columbus v. Griggs, 113 Ga. 597 (38 S. E. 953, 84 Am. St. R. 257); Reid v. So. Ry. Co., 52 Ga. App. 508, 510 (183 S. E. 849). But questions of diligence and negligence, including contributory negligence and what negligence constitutes the proximate cause of the injury complained of, being ordinarily questions peculiarly for the jury, such as this court will decline to solve on demurrer except in clear, plain, and indisputable cases (Tybee Amusement Co. v. Odum, 51 Ga. App. 1, 3, 179 S. E. 415, and cit.), the plaintiff can not be held guilty of contributory negligence as a matter of law, unless the alleged danger, such as a parked automobile or other obstruction in a high-, way, was obviously of a character that no person in the exercise of ordinary prudence would have attempted to approach or pass the same in the manner stated, or that such an attempt, or manner of attempt, plainly and unequivocally amounted to a want of ordinary care and diligence. Samples v. Atlanta, 95 Ga. 110 (22 S. E. 135); Harrell v. Macon, 1 Ga. App. 413, 416 (58 S. E. 124); MacDougald Construction Co. v. Mewborn, 34 Ga. App. 333 (129 S. E. 917); Mann v. Central of Ga. Ry. Co., 43 Ga. App. 708, 713 (160 S. E. 131); Rape v. Tenn., Ala. & Ga. Ry., 47 Ga. App. 96 (169 S. E. 764); Buffington v. A., B. ,& C. R. Co., 47 Ga. App. 85 (169 S. E. 756); Williams v. Evans, 50 Ga. App. 496 (178 S. E. 460).
2. In the instant suit, by the owner of an automobile truck driven by his agent, brought against the corporate owner of another automobile truck and trailer, on account of its alleged negligence in parking the same in the middle of a paved State highway, 18 feet wide with 2 or 3 yards of dirt and grass road on each side, the amended petition alleged that the parked truck was about 185 yards south of the crest of a hill; that between this crest and the parked truck, about 75 yards north of that truck, another truck, headed north, had stopped on the left side of the highway; that when the plaintiffs truck, traveling south, reached the crest
Judgment affirmed.