Sprayberry v. Snow

10 S.E.2d 179 | Ga. | 1940

1. Under the statutes mentioned in the corresponding division of the opinion, a proprietor of an automobile truck owes a duty to a pedestrian on the highway, in respect to parking of vehicles in the highways, a violation of which may constitute actionable negligence for injury to the pedestrian.

2. In the circumstances set forth in the statement of facts, infra, a jury might find that the injury to the pedestrian was the result of negligence by the respective drivers of the automobile and the automobile truck, both of which contributed directly to the cause of the injury. In this view, the petition, as to the proprietor of the truck was not subject to dismissal on general demurrer on the ground that negligence of the driver was not the proximate cause of the injury.

3. The Court of Appeals erred in holding contrary to the principles stated in the opinion, infra.

No. 12879. JULY 15, 1940. REHEARING DENIED JULY 29, 1940. Roop Snow was proprietor of an automobile truck hereinafter referred to as the truck. An employee hereinafter referred to as the driver was actual operator of the truck. Will Furlow was proprietor of an automobile hereinafter referred to as the automobile. Stocky Bryant was driver of the automobile. About midnight on September 11, 1937, the truck displaying glaring front lamps was parked on a paved State-aid highway twenty feet wide (not in any city limits) in an angular position, the rear end being about six feet from the center of the pavement and the front end further from the center (about nine and three fourths feet), thus placing it near the edge of the pavement. It was not parked as near the right side of said road as was practicable. It was practicable to have parked the truck entirely off the traveled part of the highway. On the night mentioned Odis Sprayberry with his wife and other members of his family were at Tifton, where they had gone in an automobile. He became separated from the others, and proceeded homeward, walking along the highway. He found the truck parked in the position above indicated; and fearing for the safety of his family he thought to be coming along, he stopped to investigate, and relieve the danger of the situation. When he approached the truck he found the driver "slumped over the steering-wheel, apparently asleep, ill or intoxicated," and the truck loaded with beer. He aroused the driver, who, remaining in the seat, began to discuss the need of water for his radiator and request assistance "in a . . continuous flow of words" so continuous as to prevent suggestion for correction of the danger. Sprayberry was "as far toward the front of the truck as he could, and be within conversational distance of" the driver, and "so far from the center of the pavement as he could be," "standing at the front fender" of the truck. He remained in that position for that purpose about two minutes, when suddenly came the Furlow automobile from the opposite direction, driven by Bryant accompanied by Furlow. The automobile was proceeding on its right side of the highway, and there was ample room on that side of the pavement for it to have passed the truck without causing injury. The driver of the automobile blinked his lamps as a signal to the truck driver. The truck lamps were not dimmed. Had they been dimmed Bryant could have avoided the catastrophe which ensued. Sprayberry standing by the truck, engaged as hereinabove described, had his back turned to the advancing automobile, and did not know of its approach, due to the neutralizing of its lights affected by the lights of another automobile approaching from the opposite direction. In these circumstances Bryant, driving Furlow's automobile at the rate of forty-five miles per hour, blinded and confused by the glare from the truck lamps, caused the automobile to swerve from its right side of the pavement across to the left side, and to strike Sprayberry inflicting wounds from which he died within a few hours. The widow of Sprayberry brought an action for damages, on charges of negligence against Snow as proprietor of the truck and Bryant and Furlow, driver and proprietor of the automobile. The petition in two counts, as amended, alleged the case substantially as stated above. The judge sustained the demurrers of Snow and Furlow, and the plaintiff excepted. The Court of Appeals affirmed the judgment sustaining the demurrer by Snow, and reversed the judgment sustaining the demurrer by Furlow, proprietor of the automobile. The plaintiff by petition for certiorari complains of the judgment of the Court of Appeals.

The assignments of error in the petition for certiorari are as follows:

"Paragraph 2. The court erred in holding . . `Without further burdening this decision with the limitless citations, we hold that the failure to dim the lights by the driver of the truck on the occasion and under the circumstances alleged was not the efficient cause of the injury complained of. We can say on demurrer that it could not be foreseen by the driver of the truck that the natural and probable result of his failure to dim his lights would result, under the conditions present, in the driver of an approaching automobile leaving his own side of the road, running seven or eight feet on the wrong side of the road and striking a pedestrian.' Said error being specifically in holding: (a) Said failure to dim the lights was not the efficient cause of the injury complained of, and also (b) It could not be foreseen by the driver of the truck the natural and probable result of his failure to dim his lights would result in the driver of an approaching automobile striking a pedestrian (deceased). The court had already decided: The only allegation as respects negligence against Snow is failure to dim his lights and thus blinding the driver of the approaching car: (c) Which adjudication of negligence against Snow created a question for the jury to decide as to the efficient cause of the injury, or forewarning thereof, unless the deceased was guilty of contributory negligence per se; which under the pleadings and decision he was not. (d) Said decision was further error because the question of proximate cause of injury, or the questions of foreseeing the same, were questions for a jury to decide, even if such failure to dim lights had not been negligence per se upon the part of Snow.

"Paragraph 3. The court erred in holding: `. . Necessarily the lights were not shining directly down the road on which the car of Furlow was approaching. . . The lights themselves were shining off the pavement.' `It will be noted that the front end of the truck was nearer the edge of the road than the rear end, and that necessarily the lights were not shining directly down the road on which the car of Furlow was approaching. If the front left fender was only nine inches from the edge of the twenty-one foot pavement, the lights were themselves shining off the pavement.' The court was in error in concluding the lights did not shine on the road; or to decide they did not blind the driver of the car. In paragraph 8 of the original petition it is alleged the glaring lights of the truck blinded and confused [the] driver of the car, causing him to run against the truck and [kill] deceased. And in paragraph 7 it alleged the driver of the car signaled the driver of the truck to dim his lights and had the latter done [so] while the former was within 10 feet of the truck the accident would have been avoided. No special demurrer was filed . . that it was a mere conclusion of the pleader; the attorneys for defendant did not raise the question that the lights did not blind and confuse [the] driver of the car, by argument or by brief, and it is error for the court to make such conclusion.

"Paragraph 4. The court erred in holding: We may say in the beginning that as to the defendant Snow, the allegations as to negligence in parking the truck violated no duty owing by Snow to deceased, a pedestrian. Said decision being a misconstruction of the law, for the reason such violation in parking said truck was negligence per se to a pedestrian.

"Paragraph 5. The court erred in holding: The law with respect to parking cars beside public roads, the placing of warnings and the like was not for the protection of pedestrians under facts alleged in this case, and violated no duty owing to him. Said decision being error for the reason under the facts alleged in this case, the deceased stopped at said truck, not only under the fundamental rights of an ordinary pedestrian, he furthermore having special rights and some actual duties at said place as follows: (a) to terminate the criminal parking of the truck; (b) to abate the nuisance caused by parking of the truck; (c) under an emergency of danger to his wife's family, caused by dangerous situation; (d) as an invitee for the sole benefit of the driver of the truck. All of which are more fully explained in the argument submitted herewith.

"Paragraph 6. The court erred in holding: . . In a suit by a third person jointly against the operator of an approaching car which ran over and injured him and the owner and the operator of the automobile which it is alleged failed to dim its lights and thus caused the driver of the approaching car to strike the complainant, (deceased), the operator of such car which failed to dim its lights is not liable unless this act was the proximate and concurring cause of the alleged injury. Said decision being error for the reason it required negligence to be the proximate and concurring cause; when as matter of law either will establish liability.

"Paragraph 7. The court erred in holding: . . `The demurrer to the first count was properly sustained.' Said error being a misconstruction and misstatement of the law.

"Paragraph 8. The court erred in holding: . . The count (one) failed to allege the violation of any duty owing to plaintiff's husband; and in holding . . `The judgment is affirmed as to defendant Roop Snow. . .' Said error being that each and both of [the] above rulings are a misconstruction and misstatement of law." 1. It is declared in the Code:

"It shall be unlawful for any person to stop or park any automobile, automobile truck, tractor, trailer, or other motor vehicle or horse-drawn vehicle, on or along any State-aid road or highway, unless such vehicle be placed so that it is at least eight feet removed from the center line of such State-aid road or highway; and such vehicle shall be so parked that no portion thereof shall be within eight feet of the center line of such state-aid road or highway." § 68-314. Any person who shall violate any provision of this law shall be guilty of a misdemeanor. § 68-9917. "Every motor vehicle using the highways at night shall be equipped with a lamp or lamps clearly visible for a distance of not less than 100 feet from the front and rear. . . The front lamps shall throw light to a reasonable distance in the direction in which such vehicle is proceeding and shall be provided with a suitable device for dimming or changing focus, so as to prevent dangerously glaring or dazzling rays from the lamps in the eyes of approaching drivers." § 68-302. "Every person operating a vehicle upon the highways shall observe the following traffic rules and regulations: a. All vehicles not in motion shall be placed with their right sides as near the right side of the highway as practicable, except on city streets where traffic is obliged to move in one direction only. b. Slow-moving vehicles shall at all times be operated as close to the right hand side of the highway as practicable. c. An operator meeting another vehicle coming from the opposite direction on the same highway shall turn to the right of the center on the highway, so as to pass without interference." § 68-303. "Upon approaching or passing any person walking in the roadway, or traveling any public street or highway, . . the operator of a motor vehicle or motorcycle shall at all times have the same under immediate control." § 68-304.

All those laws were designed for safety of the general public in relation to person or property or both. They all contemplate safety for all users of the highways, and do not exclude pedestrians. This section last quoted makes express reference to duties of operators of "motor vehicles" with respect to pedestrians on the highways. The State highways are provided for the use of pedestrians or other travelers by horse-drawn or other similarly drawn vehicles, as well as for motor vehicles. Drivers of motor vehicles are under the duty to exercise ordinary care in the operation of such vehicles on the highways, to avoid injury to pedestrians thereon, in like manner as they are under such duty to other lawful users of the highway by horse-drawn or motor vehicles or persons otherwise on the highway. In O'Dowd v.Newnham, 13 Ga. App. 220 (80 S.E. 36), it was held: "A pedestrian and a person with an automobile have each the right to use the public highway, but the right of an operator of an automobile upon the highway is not superior to the right of the pedestrian, and it is the duty of each to exercise his right with due regard to the corresponding rights of the other." The principle was stated in Letton v. Kitchen, 166 Ga. 121 (142 S.E. 658), and Harwell v. Blue's Truck Line Inc., 187 Ga. 78 (199 S.E. 739). See Wadley v. Dooly, 138 Ga. 275 (8) (75 S.E. 153). A breach of duty by Snow in the matter of the truck, in the circumstances as alleged in the instant case, may constitute actionable negligence. This comports with the ruling in Huckabee v. Grace, 48 Ga. App. 621 (2) (173 S.E. 744), and cit. The Court of Appeals erred in holding that as to the defendant Snow the allegations as to negligence in parking the truck violated no duty owing by Snow to deceased, a pedestrian. The case differs from Atlanta Charlotte Air-Line Ry. Co. v.Gravitt, 93 Ga. 369 (20 S.E. 550, 26 L.R.A. 553, 44 Am. St. R. 145), and similar cases involving application of the statutory blow-post law, holding that the law did not apply where the pedestrian was not on the public crossing.

2. The requirement in the Code, § 68-302, that front lamps as therein required "shall be provided with a suitable device for dimming or changing focus, so as to prevent dangerously glaring or dazzling rays from the lamps in the eyes of approaching drivers," implies a duty upon the driver of the motor vehicle (in the instant case a motor truck) of applying such device where necessary to prevent danger from the glaring lights of lamps in the eyes of approaching drivers. If by failure of the driver of the truck to dim the lamps, as alleged in the instant case, the driver of the approaching automobile was so blinded and confused as to cause the automobile to cross from its right side of the pavement and injure the pedestrian standing in the other side of the pavement, a jury, in all the circumstances, could find that the failure to dim the lamps was the first of two tortious acts, the first by the driver of the truck blinding and confusing the driver of the automobile, so that he committed the second tortious act naturally to be expected in the generally traveled highway, and that the first was a direct cause contributing to the death of the injured pedestrian. On the general subject see Cheeves v.Danielly, 80 Ga. 114 (4 S.E. 902); Mayor c. of Macon v.Dykes, 103 Ga. 847 (31 S.E. 443). And if the driver of the automobile, blinded and confused by the lights of the truck, proceeded regardless at the rate of forty-five miles per hour, in violation of the statutory speed limit of forty miles per hour then in vogue, and left his side of the paving, causing injury to the pedestrian standing on the opposite side of the pavement, a jury could find that the act of the driver of the automobile was a direct cause contributing to the injury. Under the alleged circumstances the jury could find that both drivers were negligent and that such negligence caused the injury. It has been held: "Where one suffers an injury as the result of the concurring negligence of two tort-feasors, the injured party may maintain a joint or several suit against the tort-feasors; and it will be sufficient to support a recovery in a joint suit if the negligence of both be a contributing cause, although the degree of care owed to the complainant by both parties defendant be not the same." Gooch v. Georgia Marble Co., 151 Ga. 462 (107 S.E. 47); Kelly v. Locke, 186 Ga. 620 (3) (198 S.E. 754). See cases cited in Letton v. Kitchen, 166 Ga. 121, 125 (supra), supporting the proposition, "that generally the question of what is the proximate cause of an injury, like the question of what is negligence, is a question for the jury." The dissenting opinion in Kelly v. Locke, supra, did not controvert this general proposition.

3. The ruling announced in headnote 3 does not require elaboration.

Judgment reversed. All the Justices concur.