Bach v. Bragg Bros. & Blackwell Inc

• Decision Date: 30 June 1936
• Docket Number: No. 25097.,25097.
• Citation: 186 S.E. 711,53 Ga.App. 574
• Court: Georgia Court of Appeals
• Parties: BACH. v. BRAGG BROS. & BLACKWELL, Inc., et al.

53 Ga.App. 574

186 S.E. 711

BACH.

v.BRAGG BROS. & BLACKWELL, Inc., et al.

No. 25097.

Court of Appeals of Georgia,

Division No. 1.

June 30, 1936.

Syllabus by the Court.

1. It is generally the duty of the driver of an automobile to anticipate the presence of other travelers upon the highway and to have due regard for their rights to the use thereof. Eubanks v. Mullis, 51 Ga. App. 728 et seq., 181 S.E. 604, and cit.

2. An automobile driver on the highway has the right to assume that others driving cars will observe the rules prescribed by law respecting lights upon the rear of their vehicles.

3. The mere fact that a plaintiff driving a properly equipped automobile at thirty-five miles per hour is 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 slightly to the right of the center of and in the highway 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.

BROYLES, C. J., dissenting.

Error from Superior Court, Fulton County; John D. Humphries, Judge.

Action by W. D. Bach against Bragg Brothers & Blackwell, Incorporated, and another. Judgment for defendants, and plaintiff brings error.

Reversed.

Carter, Carter & Johnson, of Atlanta, for plaintiff in error.

Robt. B. Blackburn and William Woodruff, both of Atlanta, for defendants in error.

MacINTYRE, Judge.

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, towards Winder and Atlanta on the Athens-Winder highway, at about 35 miles per hour, at the same time that a motortruck of the defendant corporation, being driven by the defendant servant, was also proceeding in the same direction along the same road just ahead of the plaintiff's automobile. After going over a hill and sufficiently beyond the same to be obscured from other automo-bilists 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 taillight burning, or, if so, same was of insufficient brightness and could not be seen over two or three car 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 25 feet from it, and although his brakes were working and in proper condition, and he immediately tried to stop, he ran into and against the rear of the truck, resulting in personal injuries to himself, damage to his car, personal injuries to his 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. The plaintiff charged that the defendants were negli gent in allowing the truck to stand upon the highway just beyond the crest of the hill slightly beyond the center thereof without any or with insufficient taillights, 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 from the rear, that could not see the stopped truck, time to avoid striking it, and especially because the body of the truck was so nearly the same color as the wet paved portion of the highway as to render it indistinguishable therefrom at a distance of more than two or three car lengths. The plaintiff further charged that the defendants were negligent per se in creating and maintaining a nuisance by so placing and parking on the paved portion of the highway, and in violating that part of section 9 of the Georgia Laws of 1927, pp. 226, 234, as to the equipment of a motor vehicle with lamps clearly visible for a distance of not less than 100 feet from front and rear, and in violating that part of paragraph 3 of such section of said law, that every motor vehicle shall have on the rear a red light visible for a distance of not less than 100 feet behind such vehicle, and in violating paragraph (a) of section 12 of such law (page 236), that all vehicles not in motion should be placed with their right sides as near to the right side of the highway as practicable. Count 2 of the plaintiff's petition contained the same allegations, except it was alleged that the defendant servant had brought the truck almost to a stop and the truck was beyond the center line of the highway at the time of the collision, and negligence was charged accordingly, rather than that he had brought the truck to a stop at the point just...