Opinion
35800.
DECIDED SEPTEMBER 26, 1955. REHEARING DENIED OCTOBER 11, 1955.
Action for damages. Before Judge Rees. Macon Superior Court. May 16, 1955.
A. C. Felton, III, for plaintiff in error.
John S. Averill, Jr., Hamilton Lokey, contra.
1. A paragraph of a petition which substantially alleges that the defendant admitted a material fact contrary to his interest is not subject to demurrer.
2. The petition set forth a cause of action against the defendant.
DECIDED SEPTEMBER 26, 1955 — REHEARING DENIED OCTOBER 11, 1955.
Mrs. N. A. Hardin brought an action against Fleming Council to recover the difference in the value of her automobile before and after a collision which occurred between her automobile, while being driven by her husband, and the automobile of the defendant. The gist of the allegations of the petition as finally amended is as follows: The plaintiff's husband, while driving the plaintiff's automobile, on April 16, 1953, at about 8:45 p. m., was proceeding north on State route 128 between Oglethorpe and Reynolds, Georgia, and, when about eight miles south of Reynolds, Georgia, in the vicinity of Horse Creek in Macon County, Georgia, he approached the defendant's automobile which had both headlights burning. As the plaintiff's automobile was driven over the crest of the hill south of Horse Creek, the bright lights of the defendant's automobile (facing south) were seen by the plaintiff's husband and he changed the position of the lights on the plaintiff's automobile from "bright" to "dim." On approaching the automobile of the defendant, the plaintiff's husband was unable to see beyond the other side of the defendant's lights and could see nothing beyond the arc of the lights formed by the headlights of the defendant's car; and, from the position of the lights on the defendant's automobile, it appeared that the defendant's automobile was entirely on its side of the road. When the plaintiff's automobile passed through the arc of the lights of the defendant's automobile, it became apparent to the driver that the defendant's automobile was stopped in the middle of the road, and that one-half of the automobile of the defendant was in the lane of traffic being used by the plaintiff's automobile. The plaintiff's automobile was being operated at a legal rate of speed and the plaintiff's husband could not ascertain the location of the rear of the defendant's automobile in time to avoid a collision. The plaintiff's husband could not by the exercise of ordinary care have seen the location of the rear of the defendant's automobile until he passed through the arc of the headlights of the defendant's automobile, and the road over which both vehicles were traveling was an asphalt road of a dark color and the car of the defendant was dark in color. The driver of the plaintiff's automobile made every effort to avoid a collision by trying to steer to the shoulder of the road, but though he exercised due care he was unable to avoid striking the automobile of the defendant so located on the highway. At the time the defendant stopped his automobile in the center of the highway and across the center line, as shown, he was under the influence of intoxicants. The damage to the plaintiff's automobile, as well as the value before and after the collision was set forth. "That immediately after the collision which is the subject matter of this action, the defendant voluntarily gave to the husband of the plaintiff a written statement acknowledging liability for the damage sustained by the plaintiff's automobile; a copy of this instrument is as follows: `Mr. N. A. Hardin, Forsyth, Georgia. No injuries of any nature to me as a result of accident between your 1952 Cadillac (Georgia tag No. N 24247) and my 1946 Ford (Georgia Tag No. E/X 48267). Also, accident was entirely my fault since my car was parked in the middle of the road with my lights showing on my side of the road and the left rear side of my car over center line and on your side of the road. Signed at 8:45 p. m. April 61, [sic, evidently 16] 1953, Fleming Council.'" The following negligence was charged against the defendant: "a. Driving his automobile under the influence of intoxicants, which is negligence per se; b. Being on the wrong side of the road, and not being in the act of overtaking a vehicle in the same direction, which is negligence per se; c. Parking said automobile in the center of the road and on both sides of the center line thereof, which is negligence per se; d. Stopping his automobile on the highway in such a manner as to create the illusion that his car was on the proper side of the road when in fact it was parked cross ways of the center line of the road, which is negligence per se; e. Stopping his car in the center of the road at night and making no effort to warn oncoming traffic that his car was occupying both sides of the road."
Process and a judgment in the amount sued for was prayed. The defendant filed his general demurrer to the petition as amended and a plea that the amendment not be allowed because the petition as originally filed and as amended did not set forth a cause of action. Also, as a ground of demurrer, the defendant pleaded that the amendment sought to set up a new cause of action and should not be allowed. The trial court sustained the defendant's demurrers on each and every ground, and to this judgment the plaintiff excepts.
1. The defendant contends that the quoted statement in the pleadings, attributed to the defendant, adds nothing, and when considered in its entirety refutes the plaintiff's allegation of ownership of the automobile and shows ownership in the husband of the plaintiff, and therefore there is no cause of action in the plaintiff for damages to such automobile. This paragraph of the petition is not subject to this criticism. It is actually an allegation that the defendant made the quoted statement against his interest at the time of, or shortly after, the collision. It cannot be construed as an admission by the plaintiff that she did not own the automobile, alleged elsewhere in the petition as belonging to her. "A paragraph of the petition which substantially alleges that the defendant admitted a material fact contrary to its interest is not subject to demurrer." Zapf Realty Company v. Brown, 26 Ga. App. 443 (6) ( 106 S.E. 748).
2. The defendant contends that, since the allegations of the petition show that his car was parked and the plaintiff's husband saw the bright lights of the defendant's car and did not slow down or take any precautions until after he had passed the arc of the lights of the defendant's automobile, and only then tried to avoid hitting the defendant's car, that the damage to the plaintiff's automobile arose solely from the negligence of the driver of the plaintiff's automobile.
"It is a matter of common knowledge that the glare of bright headlights of an automobile on a public highway at night will temporarily impair the vision of the driver of an approaching automobile." Burnsed v. Spivey, 52 Ga. App. 646, 649 ( 184 S.E. 410). In the case of Adams v. Jackson, 45 Ga. App. 860 (1) ( 166 S.E. 258), this court said that, where damages arose when the driver of a motor vehicle driving at an excessive rate of speed collided with a truck parked along the side of a highway, and such parked truck was extending about four feet into the highway without any visible lights, the negligence of the driver of the car which collided with the parked truck was not necessarily the sole proximate cause of the collision. Accordingly, where as here, the allegations of the petition show that the plaintiff's automobile, while being driven by her husband, collided with the defendant's automobile, which was parked in the highway with its bright lights burning and facing the driver of the plaintiff's automobile with the rear of the automobile on the wrong side of the highway so that the defendant's automobile was on both sides of the center line of the highway, it can not be said as a matter of law that the sole proximate cause of the collision was the negligent driving of the plaintiff's husband.
The petition set forth a cause of action against the defendant, and the grounds of demurrer, that the petition as amended failed to set forth a cause of action against the defendant, and that the amendment sought to set forth a new and distinct cause of action, are without merit. Therefore, the judgment of the trial court sustaining the defendant's demurrer to the petition on each and every ground must be reversed.
Judgment reversed. Carlisle and Quillian, JJ., concur. Felton, C. J., disqualified.