Gregory v. Daniel
| Decision Date | 13 September 1939 |
| Court | Georgia Supreme Court |
| Parties | GREGORY. v. DANIEL et al. |
Error to Circuit Court, Augusta County; Jos. A. Glasgow, Judge.
Action for death of a pedestrian who was struck by an automobile by Carrie B. Gregory, administratrix, against B. R. Daniel, N. A. Daniel and J. F. Daniel. To review a judgment for the defendants strik ing plaintiff's evidence, plaintiff brings error.
Reversed and new trial granted.
Argued before CAMPBELL, C. J., and HOLT, HUDGINS, BROWNING, and EGGLESTON, JJ.
Richard C. Peyton and Curry Carter, both of Staunton, for plaintiff in error.
Thomas O. Moss, of Richmond, and W. B. Timberlake, Jr., of Staunton, for defendants in error.
This case grows out of an automobile accident which occurred on the night of October 17, 1936, about nine o'clock, just west of the town of Augusta Springs, Va., and on the road leading to Craigsville, Va. Most of the buildings of the town of Augusta Springs are located on the north side of the highway. There is no business enterprise of any kind on the south side.
At the point of the accident the highway, which is hard-surfaced, is nineteen feet wide and is practically straight for a distance of 350 feet eastwardly. The truck involved was traveling westwardly and no other vehicles were in the immediate vicinity at the time. It had been raining and the air was still heavily laden with moisture, although visibility was not greatly impaired.
James F. Gregory, the plaintiff in error's intestate, with A. R. Miller and a nine-year-old child, Edwin Corbin, were walking westwardly along the road when the child, who was slightly behind the two men and carrying a flashlight, called out "here comes a car." Thereupon the three walked to the northern margin or right hand side of the hard-surfaced road and stood talking with their backs toward the center of the road. There was no shoulder on either side of the road and the ditch or drain on the northern side was filled with water and water was standing in a depression of the hard-surface close by.
The car, which was a Ford truck operated by Nimrod Wright, an employee of the defendant in error, struck the three persons, killing the boy and Gregory and injuring Miller. The driver did not stop, and later testified that he was not aware that he had hit anything and that the truck felt as if it had just slipped off the hard-surface.
The trial court struck out all of the plaintiff's evidence, presumably upon theground of the contributory negligence of the plaintiff, and the case is before us for review. There is no controversy as to the facts as stated.
Our concern, then, is whether, upon the allied issues of negligence, contributory negligence, and the last clear chance, there is a sufficient conflict of evidence for them to become a matter for the determination of the jury, or can the court declare any of them existent as a matter of law.
The violation of a statute, of itself does not necessarily constitute such negligence as will establish the existence of the principle of proximate cause. Here the parties were standing on the right margin of the road. If they had been walking or traveling westwardly at the time of the accident, that is, in the direction the truck was going, they would have been violating the statute, Code 1936, § 2154 (126) (f), which provides that pedestrians using the highways for travel shall keep as near as is reasonably possible to the extreme left edge thereof. There was ample space for the driver of the truck to turn to the left and avoid striking them. The slightest turn would have sufficed. There was nothing to prevent him from seeing the group for a distance of 350 feet ahead. The statement is justified that the result would not have been different if the deceased and his companions had been walking eastwardly and had paused in the same place and at the same time. Under such circumstances contributory negligence could not have been urged as a defense.
The evidence and exhibits disclose the fact that the windshield of the truck was so "clouded" and discolored as to seriously impair visibility. Robert Lynn, a member of the State police force, who examined the truck shortly after the accident, testified that the condition of the windshield would impair the driver's vision; that it would not have met...
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...statute does not necessarily establish the existence of proximate cause. Perkinson v. Persons, 164 Va. 172, 178 S.E. 682; Gregory v. Daniel, 173 Va. 442, 4 S.E.2d 786. As we have repeatedly stated, the test in a case where the defendant is required by law to keep a proper lookout "is, not w......
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