Potts v. Sessions

• Court: Georgia Court of Appeals
• Citation: Potts v. Sessions, 77 Ga.App. 259, 48 S.E.2d 561 (Ga. App. 1948)
• Decision Date: 01 June 1948
• Docket Number: 32045.
• Parties: POTTS v. SESSIONS.

48 S.E.2d 561

77 Ga.App. 259

POTTS v. SESSIONS.

No. 32045.

Court of Appeals of Georgia, Division No. 2.

June 1, 1948

Syllabus by the Court

1. Where an action in tort is based upon the alleged negligent parking of a truck on a highway in this State at night without lights, and the plaintiff while operating his car in a lawful manner and at approximately 45 miles per hour, is blinded by the bright lights of a third automobile which he is meeting until he is so close to the parked truck that he cannot avoid driving into th same, is not barred from recovery as a matter of law because he failed to exercise ordinary care for his own safety or because by the exercise of ordinary care he could have avoided the consequences of the negligence of the defendant. These are questions of fact for the determination of the jury. See Frye v. Pyron, 51 Ga.App. 613, 181 S.E 142; Tybee Amusement Co. v. Odum, 51 Ga.App. 1(3) 179 S.E. 415; Bach v. Bragg Bros. & Blackwell, Inc., et al., 53 Ga.App. 574(3), 186 S.E. 711.

2. The special assignments of error contained in the amended motion for a new trial are without merit for the reasons set forth in division 2 and 3 of this decision.

Plaintiff in error, Joe Potts, hereinafter referred to as the defendant, was sued in the City Court of Macon, by the defendant in error, T. J. Sessions, hereinafter referred to as the plaintiff.

The action was for personal injuries and property damage in the alleged amount of $759.

The petitioner alleged facts substantially as follows: That on February 28, 1947, plaintiff was driving his 1941 Pontiac coupe in an easterly direction on what is known as the Skipperton Road in Bibb County, at approximately 45 miles per hour with his headlights burning and met another automobile with its headlights burning so brightly that he was partially blinded thereby; that this occurred at late evening when it was practically dark and the weather very cloudy; that the defendant had parked his truck on the southside of said highway facing in an easterly direction with all four wheels on the paved portion of the highway and with the left side considerably less than 8 feet from the center of said highway at a point immediately south of the place where plaintiff's car met the other car with the bright lights that defendant's truck had no lights burning on it and plaintiff could not see it until after he had passed the automobile with the bright lights; that when he passed this automobile and reached the point where it was possible to see the defendant's truck he was within 25 feet of it; that this was too close to stop although he immediately applied his brakes; that he collided with the rear of the truck damaging his car in the sum of $600, damaging his watch which was broken in the collision, in the amount of $9 and sustaining injuries to himself as a result of this collision consisting of a bruise and laceration of the forehead and several bruises on his chest from which he suffered pain for several days after the collision and for all of which he sues; that the defendant was negligent in the following respects: (a) In parking said truck on said highway with the left side thereof less than 8 feet from the center of said highway in violation of Code, § 68-314; (b) In failing to have lights burning on said truck, particularly the rear light, in violation of Code, § 68-316(a); (c) In failing to give petitioner any warning of said parked truck.

The defendant by answer either denied all material allegations of the petition or required proof of same; denied liability and contended he was in the exercise of ordinary care and that he could not avoid the consequences of plaintiff's negligence; that the plaintiff could have avoided the consequences of defendant's negligence, if any, by the exercise of ordinary care, which defendant avers plaintiff failed to exercise; that the plaintiff's negligence was greater than defendant's negligence, if any, and that the plaintiff therefore is not entitled to recover.

Construing the evidence in its light most favorable to sustain the verdict the jury trying the case was authorized to find facts substantially as follows: That on the date alleged the plaintiff was driving his automobile in an easterly direction on the Skipperton Road in Bibb County at approximately 45 miles per hour; that he and another were returning from a hunting trip in Crawford County; that the time was at the close of day when it is necessary to turn on the lights to aid the visibility of motorists and the weather was cloudy that plaintiff had his headlights burning and met another automobile with its headlights burning very brightly, partially blinding plaintiff so that at this point he could not see past the bright lights of the automobile he was meeting and see the truck of the defendant which had been parked between one and three minutes on the south side of the Skipperton Road facing east with all four of its wheels on the paved portion of the highway and so that part of it was within two or three feet of the center of the paved portion of said highway; that none of the lights on the truck of the defendant, including the tail light, was burning; that as the plaintiff was being met by the automobile with bright lights partially blinding him, he slowed down awaiting this motorist to dim his lights, but the same were not dimmed; that immediately upon passing this car, the plaintiff saw the truck of the defendant which was approximately 40 feet from him, and at the time he was running approximately 40 or 45 miles per hour; that he was too close on the truck to turn either to the right or left and avoid colliding with the back end of it; that he applied his brakes in an effort to stop but being unable to do so collided with the truck damaging his car, breaking his watch and sustaining several bruises and lacerations to himself causing soreness and pain for several days; that the repairs necessary to restore his car to its former condition would have amounted to $511.02; that part of these repairs were not made due to inability to get the necessary parts, but the sum of approximately $400 was expended by the plaintiff on repairs.

The jury's verdict was for the plaintiff for $208. The defendant filed a motion for a new trial on the general grounds which was later amended by adding 3 special grounds. The trial judge overruled the motion for a new trial as amended and this judgment is assigned as error.

Frank G. Wilson, of Macon, for plaintiff in error.

Miller G. Edwards, Jr., of Macon, for defendant in error.

TOWNSEND, Judge (after stating the foregoing facts.)

1. Counsel for the defendant in his brief contends that the trial court erred in overruling the motion for a new trial on the general grounds because, first, the evidence he contends demands a finding that the plaintiff was guilty of such contributory negligence as to bar a recovery; second, that he contends plaintiff fails to prove that the road on which the collision occurred was a State-aid road on which Code, § 68-314 would be applicable; third, that he contends that Code, § 68-314 was not applicable because the evidence required the finding that the defendant parked his truck as far removed from the center as possible and that the law does not require an impossibility; and fourth, that he contends the evidence failed to show the time of the collision was more than 30 minutes after sunset or that visibility was restricted to 500 feet and that therefore Code, § 68-316(a) is...