Opinion
44027.
ARGUED NOVEMBER 7, 1968.
DECIDED FEBRUARY 28, 1969. REHEARING DENIED MARCH 13, 1969.
Action for damages. Cobb Superior Court. Before Judge Ingram.
J. M. Grubbs, Jr., for appellant.
Nall, Miller, Cadenhead Dennis, Thomas S. Carlock, Swift, Currie, McGhee Hiers, Lowell S. Fine, for appellees.
The defendant's motion for summary judgment was properly denied.
ARGUED NOVEMBER 7, 1968 — DECIDED FEBRUARY 28, 1969 — REHEARING DENIED MARCH 13, 1969.
Virginia Cheryl Rash, by next friend Charles E. Rash, brought an action against Charles L. Davis and Samuel Horace Wehunt, jointly and severally, for damages for personal injuries sustained in a rear-end automobile collision, resulting from the alleged negligence of the co-defendants. The complaint as amended alleges substantially as follows: On October 14, 1965, at about 10:30 p. m., plaintiff was a passenger in an automobile being driven by defendant Davis in a northerly direction upon U.S. Highway 41, a two-way, four-lane, public, state aid highway of the State of Georgia. As said automobile approached the intersection of Terrell Mill Road, an area about 3 miles south of Marietta, Cobb County, Ga., and outside any residential or business district, in the inside lane at a speed of about 40 m.p.h., Davis observed the automobile operated by defendant Wehunt, stopped in Davis' lane at said intersection, which was controlled by a blinking or flashing, yellow caution traffic signal for northbound traffic. At that time and place there was no traffic entering the said highway and defendant Wehunt was stopped without any cause or justification. Defendant Davis' alleged negligence causing the ensuing rear-end collision consisted of failing to keep his vehicle under control, driving at excessive rate of speed for existing conditions, failure to maintain proper lookout, failure to turn or apply brakes to avoid the collision, and failing to proceed with caution upon observing the flashing yellow traffic signal. The specifications of defendant Wehunt's negligence are: "(a) In stopping or parking his automobile upon the driving lanes of a public highway during hours of darkness without reasonable cause or justification therefor in such manner as to create an imminent hazard and danger to other vehicles proceeding on said public highway; (b) In bringing his automobile to a stop at a flashing yellow traffic signal rather than proceeding through the intersection with caution; (c) In failing to warn northbound traffic by signals, lights or other warning devices that his automobile was stopped or parked in the traveled portion of a public highway," the above being in violation of Code Ann. §§ 68-1668, 68-1670.
In addition to depositions of a dentist and two doctors, depositions of the plaintiff, her father and defendant Wehunt were filed in the case. Wehunt filed a motion for a summary judgment, from the judgment of the court denying which he appeals.
The depositions raised a number of genuine issues of material fact which cannot be resolved by summary judgment.
There was a direct conflict in the testimony as to whether the traffic signal involved was red (as defendant Wehunt claimed) or flashing yellow (as the plaintiff claimed) at the time of the collision. The testimony showed that the light operates sometimes during the day as a flashing or blinking signal (yellow for the highway and red for the intersecting road) and at other times, especially when traffic is leaving a commercial establishment on the intersecting road, it operates in a regular green-yellow-red cycle. Thus, a jury might find that Wehunt was lawfully stopped at a red traffic signal at the time of the collision. If the light be found to have been flashing yellow for the highway, however, whether Wehunt was negligent in stopping, rather than merely slowing down, would be an issue for the jury, depending upon whether the then-existing traffic conditions, as determined by the jury, justified or required his stop.
As to appellant's alleged failure to properly indicate his stop, the plaintiff testified that his brake lights were not on and that she couldn't remember whether or not his tail lights were on. Appellant testified that he had his foot brake on at the light, as there was a slight decline at that point of the highway, that his brake lights and tail lights were in operating order and that his automobile had undergone the state motor vehicle safety inspection at the required time. Thus, there was a factual issue as to whether or not the defendant's brake and tail lights were operative and on at the time in question, so as to give the co-defendant notice of his having stopped.
The testimony, then, raises the issues of whether or not appellant was negligent and, if so, whether such negligence was a proximate contributing cause or his co-defendant's negligence was the sole proximate cause. See Washington v. Kemp, 97 Ga. App. 235 ( 102 S.E.2d 910).
The court did not err in its judgment denying the motion for summary judgment.
Judgment affirmed. Eberhardt and Whitman, JJ., concur.