Georgia Power Co. v. Jones

• Decision Date: 20 November 1936
• Docket Number: 25527.
• Citation: 188 S.E. 566,54 Ga.App. 578
• Parties: GEORGIA POWER CO. v. JONES.
• Court: Georgia Court of Appeals

188 S.E. 566

54 Ga.App. 578

GEORGIA POWER CO. v. JONES.

No. 25527.

Court of Appeals of Georgia, Second Division

November 20, 1936

Syllabus by the Court.

1. None of the special grounds of the motion for new trial shows error.

2. Under the law and the evidence the jury was authorized to find a verdict for the plaintiff.

3. The court did not err in overruling the motion for new trial.

Error from Superior Court, Baker County; B. C. Gardner, Judge.

Action by Carl Jones against the Georgia Power Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

In motorist's action for injuries received when automobile struck unlighted truck standing in highway as motorist rounded curve, which threw light to left of road so as not to reveal truck, question of negligence of motorist as proximate cause of injuries held for jury.

Carl Jones brought suit against the Georgia Power Company for alleged injuries sustained by him, and for damages to his automobile which he was driving at the time. The substantial allegations were that between the hours of dark and daylight on April 19, 1933, the defendant had negligently parked its truck on the right-hand side of the Albany-Newton highway without any lights or signals, and that, while in the exercise of due care, driving along the highway at the rate of 15 miles per hour at the time he first saw the truck, when at a distance of 20 feet therefrom, his automobile collided with the truck, and he received certain described permanent injuries; that his car was completely demolished and rendered worthless; that the alleged negligent parking of the truck was the proximate cause of his injuries and damage, and that by the exercise of ordinary care he could not have avoided the injuries and damage complained of. The defendant filed an answer denying the substantial allegations of the petition and by an amendment alleged further that it was not guilty of any act of negligence, and that the collision and injuries were due to the plaintiff's failure to exercise ordinary care; that the collision could have been avoided by the exercise of ordinary care on the part of the plaintiff; that the truck had broken down in the daytime, and that, while the tire from the truck had been taken away for repair and the truck left parked on the right-hand side of the road, the plaintiff ran into the back end of the truck; that there was no negligence on the part of the defendant in leaving the truck in its position on the road; that, if the automobile driven by the plaintiff had been equipped with proper lights the plaintiff, in the exercise of ordinary care, could and should have seen the broken-down truck when 250 feet away from it, and that he actually saw it when 30 or 40 feet away from it, and, after seeing it, could, by the exercise of ordinary care, have stopped his automobile and avoided the injury for which suit was brought; that he had not obtained a license for his Ford automobile and was using thereon a license which had been issued for a Chevrolet automobile, and that he thereby violated the statutory laws of the state, and that said violation was negligence and the proximate cause of the collision. The defendant alleged further acts of negligence on the part of the plaintiff, but, as these are referred to in the opinion they are not set out here.

The defendant further alleged that it was not guilty of any negligence or the violation of any law, and that if it committed any acts of negligence, which it denied, such negligence or alleged negligence was existing before the plaintiff ran into the truck, and that in the exercise of ordinary care he could and should have discovered the defendant's negligence, and, in the exercise of ordinary care when such negligence was discovered, could have avoided the injury, and that the failure on his part to exercise ordinary care was the cause of the collision and prevents him from recovering in this case; that, when the truck into which the plaintiff ran broke down, it was left some 25 or 30 feet on the east side of the bridge on the road, with the left wheels at least 6 or 8 feet beyond the center of the road and that said road at that point was approximately 28 feet wide; that the truck was plainly visible for a distance of 250 feet, and that the collision was due to the want of ordinary care on the part of the plaintiff; that, if said broken-down truck had been left nearer the center of said highway, the truck as thus left was plainly visible by plaintiff for a distance of over 250 feet, and that the collision was due to the plaintiff's failure to exercise ordinary care and diligence; that this is true whether he collided with the truck in the daytime or after dark, because the truck was plainly visible in ample time for him to have avoided the collision if he had exercised ordinary care as required of him by law in driving his automobile; that the defendant was not guilty of negligence, and that, if the plaintiff was not guilty of negligence, the occurrence was an unavoidable accident, and that no recovery can be had against the defendant.

The evidence introduced was very extensive, but for the purpose of the present opinion it may be fairly condensed as follows: The plaintiff, driving a Ford automobile in returning from Albany, Georgia, to his home in Newton, Georgia, on April 19, 1933, received permanent injuries from a collision with a truck of the defendant under the following circumstances: In the afternoon during daylight, the truck, because of tire trouble, had been parked on the right of the road headed towards Newton, its rear end being 25 or 30 feet from the end of a bridge ahead of it. This bridge was on the Albany-Newton highway and spanned a creek. It was at an angle to the road, and, leaving it en route to Albany, one passed over a sort of fill which was somewhat wider than the road which proceeded from it, and which was of an average width of about 25 feet. Further up the road there was a cattle gap, between which and the bridge was a sharp curve, and from a point 200 feet or more from the bridge there was a slight curve, although the road was practically straight. A civil engineer, who made a survey of the road, testified that for 200 feet from the bridge towards Albany the curve was approximately 2 feet. Several witnesses testified that the left side of the parked truck, which faced in the direction of Newton, was from 3 to 5 feet from the right-hand rut of the road, and that to the left of the truck two automobiles could be accommodated side by side on the road. The plaintiff, however, testified that the left side of the truck was almost in the center of the road. One witness testified that, with reference to the road, "the truck was right about the center." There was no taillight burning on the truck, and it is not contended by the defendant that it was burning. From evidence more tedious than difficult to set forth the jury was authorized to find that the collision occurred about sundown or a little later. Several witnesses testified that shortly after the collision a number of cars passed without headlights burning, but the plaintiff testified that he had on his lights, and a witness, who passed shortly before the collision, swore that his headlights were burning. The explanation of the presence of the truck, as given by its driver, was that because of tire trouble he had to park the truck and go to a filling station for help; that he returned with a repairman and then the latter went back to the filling station while the witness waited at the truck; that he then returned with the repairman to the filling station, all trips being made in connection with repairing the tire and making an adjustment. Upon returning to the truck the second time, accompanied by one or two other employees of the defendant who had recognized the driver at the filling station as they passed, en route to Albany, from their work at the defendant's plant about a mile from Newton, it was discovered that the car driven by the plaintiff had collided with the truck. These other employees had left the plant at 5 o'clock in the afternoon, had reached Newton about 5:30, had spent about fifteen minutes there, had passed over the bridge about a mile from Newton, had joined the driver at the filling station further up the road, and had remained there about fifteen minutes before returning to the parked truck with the driver. The plaintiff testified that the collision occurred about 8 o'clock at night, and that his headlights were burning at the time. Some testimony was offered to show that the lights had been thrown on by the impact with the parked truck. A storekeeper testified that he observed the plaintiff's headlights burning when the latter left his store, about 6 miles from the bridge, where the plaintiff had stopped a while before proceeding in the direction of the bridge, and that at that time the top of the sun had hardly descended to the top of the trees.

As to the collision, the plaintiff testified that he was driving on the right side of the road about 25 or 30 miles an hour, but at the cattle gap slowed up to about 15 miles an hour, and so proceeded in approaching the bridge and around the slight but gradual curve; that his lights, which he followed with his eyes, were reflecting to the left of the truck and into the woods on the left of the road; that when he first saw the truck he was not more than 20 feet from it, his attention, as he was looking in the direction of his lights, being attracted by an exclamation from his companion in the car who holloed "Lookout!" or "something"; that the outcry excited him and he cut the wheels of his car to the left to avoid the truck but struck it; that he had good brakes on his car, a model A two-door Ford...