Sprayberry v. Snow

• Decision Date: 14 February 1939
• Docket Number: No. 27308.,27308.
• Citation: 1 S.E.2d 756
• Parties: SPRAYBERRY. v. SNOW et al.
• Court: Georgia Court of Appeals

1 S.E.2d 756

SPRAYBERRY.

v.SNOW et al.

No. 27308.

Court of Appeals of Georgia, Division No. 1.

Feb. 14, 1939.

Rehearing Denied March 23, 1939.

Syllabus by the Court.

1. "Before negligence per se, or any other form of negligence, is actionable in a given case, it must appear that the broken duty was due the plaintiff personally, or as a member of a class; * * * In determining whether the violation of a statute is such negligence as to support the alleged cause of action, the court is called upon to examine the law as in respect to its purposes."

2. The failure to dim lights upon the approach of another automobile or vehicle may amount to lack of ordinary care. In a suit by a third person jointly against the operator of the approaching car, which ran over and injured him, and the owner and operator of the automobile which it is alleged failed to dim its lights and thus caused the driver of the approaching car to strike the complainant, the operator of such car which failed to dim its lights is not liable unless this act was the proximate and concurring cause of the injury alleged.

3. The injury sustained must be the natural and probable consequence of the failure to dim the lights; and it must appear that the resulting damage was known in common experience to be usually and naturally in consequence.

4. Applying the above rules to the facts alleged in the pleadings in this case, no cause of action was set forth against the operator of the car because of the alleged failure to dim his lights, and it was not error to sustain the demurrer interposed.

5. The driver of a car who is blinded by the lights of an oncoming ear should ex-ercise a care and caution commensurate with the increased danger to others who may be traveling the same road. It was error to sustain the demurrer to the petition as against the one who controlled the moving car which caused the injury.

Error from Superior Court, Berrien County; W. R. Smith, Judge.

Action by E. I. Sprayberry against Roop Snow and others to recover for the death of plaintiff's husband, who was struck by an automobile on a highway at night. To review a judgment sustaining demurrers to the petition, plaintiff brings error.

Affirmed in part and reversed in part.

John Henry Poole, of Tifton, for plaintiff in error.

J. P. Knight, of Nashville, and Lang-dale, Smith & Tillman, of Valdosta, for defendants in error.

GUERRY, Judge.

The plaintiff brought suit against Roop Snow, Stocky Bryant, and Will Furlow for the alleged tortious death of her husband. The petition was in two counts. The first count alleged that at about twelve o'clock at night the truck owned and operated by the defendant Snow was stopped beside the paved highway in Berrien County, because the water in the radiator was too low and it had become heated. It was parked at an angle, the rear end being nearer the center of the road, the front fender being within nine inches of the edge of the road and nine and three-fourths feet from the center of the road, and the rear end within six or seven feet of the center of the road. The outer side of the pavement was sandy and uneven and dangerous to walk on. Plaintiff's husband was walking along said roadway and stopped opposite the cab of the truck and was talking to the driver of the truck. The lights of the truck were not dimmed but threw a blinding and glaring light. Another car, controlled by Fur-low, and being driven at the time by Bryant, with Furlow riding in the car, approached from the opposite direction at a rapid rate of speed, 45 miles an hour, and although Bryant was blinded by the lights of the truck he did not slacken his speed and ran into and against plaintiff's husband and killed him. The negligence alleged as against Snow was that he failed to dim his lights, that he parked his truck as alleged, and that he failed to put out flambeaux to warn traffic. The negligence alleged as to the other two defendants was as to the rate of speed at which they were driving, and the driving across the road and striking the deceased while he was standing talking to the driver of the truck.

The second count alleged the position of the truck as the same, and the same negligence as to the parking and failure to place warnings, and alleged further that the place where the truck was parked was 300 feet from the crest of a hill and that the truck was parked without bright lights being switched on while it was parked, and thus caused the car of Furlow to be driven against the deceased. No demurrer or answer was filed by Bryant, the driver of the car; Furlow filed an answer and a demurrer, and Snow, the owner of the truck, filed his demurrer. Exceptions were taken to the sustaining of these demurrers. Snow, alone of defendants in error, filed briefs in this court.

We may say in the beginning that as to the defendant, Snow, the allegations as to negligence in the parking of the truck showed no violation of any duty owed by Snow to the deceased, a pedestrian. As was said in Platt v. Southern Photo Material Co., 4 Ga.App. 159, 60 S.E. 1068, 1069: "Before negligence per se, or any other form of negligence, is actionable in a given case, it must appear that the broken duty was due the plaintiff personally or as a member of a class; * * * In determining whether the violation of a statute is such negligence as to support an alleged cause of action, the court is called upon to examine the law in respect to its purposes." See also Hucka-bee v. Grace, 48 Ga.App. 621, 630, 173 S. E. 744, and cit. The law with respect to parking cars on public roads, the. placing of warnings, and the...