Opinion
43510.
SUBMITTED MARCH 5, 1968.
DECIDED APRIL 5, 1968.
Action for damages. Whitfield Superior Court. Before Judge Pope.
John D. Edge, for appellant.
Whether a person driving on a section of highway which the State has not yet officially opened can be liable for negligence per se in violating statutory laws governing operation of vehicles on highways depends upon the factual question whether the construction there has reached a point where the ordinarily prudent person would be warranted in believing that the highway was open to the public and a safe place to travel.
SUBMITTED MARCH 5, 1968 — DECIDED APRIL 5, 1968.
The plaintiff sued the defendant for property damage to his automobile resulting from the defendant's alleged negligent driving on a public highway. The record shows that the petition alleged negligence only in the violation of two provisions of the law regulating traffic on highways (Uniform Act Regulating Traffic on Highways, Ga. L. 1953, Nov. Sess., pp. 556, 577, 582, as amended Code Ann. §§ 68-1626, 68-1635). The trial court directed a verdict for the defendant on the ground that the plaintiff had not proved his allegation that the incident occurred on a public highway because the evidence showed the highway had not been opened to the public and the provisions of the Act whose violation was alleged as negligence did not apply on a highway not opened to the public.
This court held in Powell v. Barker, 96 Ga. App. 592, 599 ( 101 S.E.2d 113), that whether a highway is open for travel is determined by the factual question whether its construction has "reached a point where the ordinarily prudent person would be warranted in believing it was open to public use and a safe place to travel."The following evidence was presented at the trial. The plaintiff testified that there was no barricade where he got on 1-75, and the road was new and under construction. Another witness testified that he was employed by the Department of Public Safety and had investigated the wreck, and when he arrived at the scene found the plaintiff's vehicle sitting in the road on the pavement and the defendant's in a divider; that there were people who had been using the road; the State did not patrol the road and it had not been opened to the public at the time.
Colloquy between court and counsel following the defendant's motion for directed verdict shows that the court determined that the plaintiff had failed to prove that the "highway was open to the public," and plaintiff's counsel admitted "that the highway had not been accepted by the State Highway Department at the time."
The undisputed evidence in this case shows that there was no barricade where the plaintiff got on I-75; there was pavement on the road and a divider; and there were people who had been using it. Applying the rule of the Powell case to these facts, this court cannot hold as a matter of law that no prudent person would be warranted in believing the road was open to public use and a safe place to travel. We hold therefore that the defendant's liability for negligence in violation of the statutory provisions alleged must depend upon the determination of this factual question.
The trial court erred in directing the verdict for the defendant.
Judgment reversed. Bell, P. J., and Quillian, J., concur.