Fender v. Drost
| Decision Date | 29 February 1940 |
| Docket Number | 28080. |
| Citation | 7 S.E.2d 800,62 Ga.App. 345 |
| Parties | FENDER v. DROST. |
| Court | Georgia Court of Appeals |
Rehearing Denied March 23, 1940.
Syllabus by the Court.
Wilmer D. Lanier and Bussey & Fulcher, all of Augusta, for plaintiff in error.
Isaac S. Peebles, Jr., Nathan Jolles, and Pierce Bros, all of Augusta, for defendant in error.
George Drost brought suit against Ralph Fender to recover damages for certain personal injuries alleged to have been sustained as a result of the negligence of the defendant. The plaintiff alleged that on the evening of November 19, 1938 he was a deputy sheriff of Richmond County and it became his duty to patrol the Milledgeville road, a State and Federal aid highway in that county, that this road is paved with concrete a width of 18 feet, with top soil shoulders on each side of the pavement approximately 6 feet wide, that around 8:55 P M., on that date, the plaintiff received an official radio call directing him to go to a point on that highway about 10 miles from the city limits of Augusta and investigate an automobile wreck, that the plaintiff and one Ridgeley proceeded to this point on the Milledgeville road where they found that an automobile being driven in an easterly direction had skidded off the south side of the highway, that the plaintiff stopped his automobile opposite to the place where the automobile had skidded in the highway and discharged deputy sheriff Ridgeley so that he could prevent congestion of traffic, and then proceeded a short distance, approximately 100 feet, westerly, and pulled off the pavement, parked his automobile on the top soil shoulder to the north of the highway approximately 7 feet from the center thereof, and then went back towards the wreck, that when he reached the wreck he found that the defendant had arrived with his wrecker, turned it around and pulled the wrecked automobile out of the ditch and up on the shoulder of the highway, and the defendant was in the highway approximately 7 feet from the center with his wrecker and adjusting the "grappling to the wrecked car," that the plaintiff upon finding that the defendant had gotten the wrecked car back upon the shoulder of the highway and was placing the wrecker in the highway with the view to jacking up the wrecked car, turned back and across from the direction of the south side of the highway and started to his automobile which was parked on the north shoulder and off the pavement, and when the plaintiff had reached the edge of the pavement and approximately 60 feet from where his car was parked on the north side of the highway the plaintiff looked up the highway and saw a truck approaching about 70 feet up the road from him and from the direction in which the truck was headed, that it appeared to him that the truck was bearing down upon him, and he began to run from the pavement across to the shoulder approximately 10 feet down towards the ditch, but he had only made a few steps before the truck was all but upon him and on the shoulder, and the plaintiff thereupon sought to spring from the shoulder across the ditch on the north side of the highway, and while in the act of so doing, he was struck by the front of the truck, that the truck passed on, ran into his automobile just a few feet beyond the shoulder off the pavement on the right or north side of the highway, that the defendant's wrecker was parked on the pavement on the south side of the highway with two electric headlights shining "with dazzling and glaring rays blinding the driver of the oncoming truck" which was approaching from the east, that the defendant "in addition to having the two powerful electric head lights with dazzling and glaring, and blinding rays down said highway, had a high powered spot light which also was dazzling and glaring with blinding rays down said highway directly in the face of the driver of the oncoming truck, further blinding him," that from where the defendant's wrecker was parked in the highway there is an upgrade "eastward towards Augusta" of approximately seven and one half degrees, and that some 60 yards therefrom in the same direction, the highway turns suddenly at "right angles from a southwesternly direction in a westernly direction," so that from the crest of the hill "was a straightaway up which said three powerful, dazzling and glaring head lights shone," blinding the driver of the truck, and "incapacitating him and making him unable to see" the plaintiff's position of peril "on the shoulder of said highway endeavoring to escape the danger from the oncoming truck," that there was attached to this truck a trailer loaded with mules and when Brown came upon this "straightaway, up which" such lights from the "defendant's wrecker were shining," he was blinded and unable to see down the highway and so sought to pull to the right of the road and applied his brakes so as to bring his truck to a stop, but, before the truck was stopped, it struck plaintiff inflicting the injuries sued for, that the plaintiff was at his post of duty as a deputy sheriff, and in the exercise of all ordinary care and diligence and engaged in an effort to prevent any one from being injured by the blocking of the road or by passing automobiles and other traffic at this point, at the time he was injured, all of which was known to the defendant, that the defendant had knowledge of the plaintiff's dangerous...
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