Aрpellant/plaintiff Delbert Young, as legal guardian of Stephen Robert Young and Patrick Matthew Young, minor children, appeals the order of the superior court granting summary judgment to appellee/defendant Wendell Ward Kitchens.
This appeal arises from a suit for damages for personal injury, pain and suffering by the deceased Dennis James Young. Young sustained fatal injuries in a traffic incident in which a vehicle driven by appellee struck and killed him. On the evening of February 2, 1994, Young was driving his girl friend, Weavеr, in his automobile. Young’s automobile broke down, and he and his girl friend commenced walking eastbound on the right side of Frontage Road, a two-lane access road to Interstate 20. The night was dark. Earlier, Young had consumed approximately a quаrt of beer, but in his girl friend’s opinion, he was not drunk at the time of the incident. Young was wearing blue jeans, a white shirt that had a hood on it, a deer-skin leather jacket with fringes on it, and white tennis shoes. Weaver was wearing blue
Miller was driving his car eastbound on Frontage Road when he had to swerve suddenly across the yellow centerline to avoid a man, later identified as Young, who was walking in the roadway with his back to oncoming cars. Miller testified that both the night and the man’s clothing were dark and that he sаw the man only because of bis white tennis shoes. After Miller sounded his car horn, Weaver and Young “[g]ot out of the way” of traffic and continued down the roadway. In the meantime, Miller turned his car around to warn the man to get out of the road; as he aрproached the couple, he saw another car approaching. There was a blur in front of the oncoming car’s headlights followed by screaming.
The oncoming car, which was traveling eastbound, was driven by appellee who was approximately one and one-half miles from his house. Appellee was accompanied by his wife. The weather was clear, and at the accident site, there was no hill or curve which blocked appellee’s view. Appellee’s vehicle was traveling 35 to 40 mph, the headlights were on, and appellee was looking straight down the street. Appellee testified without contradiction that just as he crested an incline in the road, he observed the headlights of Miller’s oncoming automobile; he did not see Young in the roadway until his vehicle was approximately three or four feet away from him. Appellee’s wife screamed, and appellee’s car struck Young. If it had been daylight, Young would have been visible possibly from a distance of 300 to 600 feet. (There is some evidence in the record that it was approximately one-tenth of a mile from the declining side of the hill crest to the point of impact.) Weaver testified that at the time of thе impact Young and she both were “walking close to the road,” although she does not remember the actual impact. Appellee immediately stopped his car in the eastbound travel lane and ran back to where Young was lying on thе ground just off to the right of the roadway; Miller also stopped and attempted to assist. Miller observed that Young was injured and was trying to speak; Miller then went back to his car to phone for assistance.
While in his car, Miller observed another car approaching. This car was unable to stop so it swerved onto the shoulder of the road, hitting the open door of appellee’s car and allegedly running over Young who was lying injured on the ground approximately three to five feet off to the right of the roadway. The driver of this vehicle fled the scene. Young died as a result of this incident.
Appellee testified by way of deposition that he was returning home from visiting his grandson; when he visits his grandson, he travels a particular route that includes a portion of the access road. As he was driving on the access road at the Oxford Road intersection, he “remembered seeing the headlights of another car coming. And [he does not] remember just where that car was at, but all at once [he] got a glimpse of a person coming from my right to my left. And about that time my wife hollered, and about then at that time, I hit [the person].” He struck Young with the right headlight and right portion of the windshield of his car. Appellee further testified that the glare from the headlights “could have” had some effect on his vision; he just knows that he did not see Young until he was three or four feet from him at which time he immediately hit his brake either a split second before or at impact. Although unable to remember all the detаils of the impact, appellee’s wife testified that Young had “just stepped out in front of us quickly,” but she just saw a glimpse of this and does not know which way he was facing; the right-hand side of their car struck Young, and she did not see Young until the car hit him. lii a subsequent depоsition, appellee’s wife testified that she did not see Young before their car hit him, and nothing else brought Young to her attention before impact.
Appellant’s sole enumeration is that the trial court erred in granting summary judgment to appelleе, as its holding was based on an erroneous conclusion that appellant was
1. Appellant’s brief is replete with inaccurate citations as to the volume and page of cited precedent. As officers of this Court, counsel have a duty to use due diligence in providing accurate citations of authority in their appellate briefs.
2. In granting summary judgment in behalf of appellee, the trial court stated inter alia, “[defendant contends that [pjlaintiff is unable to point to any evidence in the record which tends to show that [defendant breached his duty of care. The court agrees.” The applicable summary judgment standard is that of
Lau’s Corp. v. Haskins,
3. While it is cleаr that the deceased, at the time of impact, was not in compliance with the provisions of OCGA § 40-6-96 pertaining to pedestrians walking on or along a roadway, questions of contributory negligence, comparative negligence, and thе exercise of due care for one’s own safety also are questions which ordinarily are not susceptible to summary adjudication.
Thompson v. Crownover,
During his deposition testimony, appellee gave an unqualified negative response to the question whether there was “anything obstructing or blocking [his] view of Mr. Young . . . within a quarter mile of the incident.” Any evidence offered by appellee in contradiction to this testimony and for which no reasonable explanation was tendered as to the reasоn for the inconsistency would be subject to the rule of
Prophecy Corp. v. Charles Rossignol, Inc.,
However, even if the unobstructed distance were only one-tenth of a mile, our disрosition of this case would remain the same. Further, although appellee testified that the oncoming car’s headlights cast “some glare” or “a certain amount of glare” on him and “could have had some effect” on his vision, at no time did he testify that he was blinded by or rendered incapable of seeing by the oncoming car’s headlights. Several cars passed the deceased, Young, without incident. Although Young was dressed in dark clothing, Miller was able to see his white tennis shoes and avoid striking him. Weaver testified without contradiction that as she and Young walked they were always close enough to converse with each other; the jacket she was wearing was medium or cornflower blue of a shiny, satiny-material, it was not really that dark; and, if a light were to shine on it, “you could see it.”
Eubanks v. Mullis,
Judgment reversed.