Opinion
34138.
DECIDED JULY 16, 1952.
Action for damages; from Appling Superior Court — Judge Thomas. May 10, 1952.
Sharpe Layne, for plaintiff in error.
Milton C. Grainger, contra.
The driver of an automobile who is blinded by the lights of an approaching vehicle should exercise a care and caution commensurate with the increased danger to others who may be traveling the same road, and a petition alleging that the defendant continued to drive at a speed of 55 miles per hour while blinded by the lights of an approaching automobile and that while so blinded he struck and killed the deceased, alleged a good cause of action and the court did not err in overruling a general demurrer thereto.
DECIDED JULY 16, 1952.
Luther Rowland, Mrs. Irene R. Ryals, T. W. Rowland Jr., Clayton Rowland, Fred W. Rowland and Vernon Rowland sued Howard Miller as the heirs of T. W. Rowland for the death of T. W. Rowland allegedly due to the negligence of Miller. The petition alleged substantially: that U.S. Highway 341 is a broad, paved public highway running through Applying County, Georgia, in a general easterly and westerly direction, and the hard surface portion of such highway is not less than 22 feet in width; that in the early morning hours of December 16, 1951, at about 12:15 a. m., the plaintiffs' father, T. W. Rowland, was walking in a westerly direction on Highway 341, and when he had reached a point approximately one mile west of Baxley he was struck and run over and killed instantly by an automobile owned and operated by the defendant; that at the time the deceased was walking on the highway in a westerly direction and was using the left traffic lane of the highway, the deceased being on the hard surface portion of the highway approximately two feet from the edge of the pavement; that the traffic lane in which the deceased was walking was the same lane being used by the defendant who was approaching from the opposite direction; that at the time the deceased was struck the defendant was negligently operating his automobile at a high, dangerous and excessive rate of speed of not less than 55 to 60 miles per hour; that at the time the deceased was struck and killed the defendant was in the process of meeting and passing another automobile approaching from the opposite direction; that instantly after the defendant had passed such automobile, which was meeting him from the opposite direction, his automobile struck and killed the deceased; that the defendant did not see and observe the deceased so walking on the highway until the instant that his automobile struck the deceased, for the reason that the defendant was blinded by the headlights of the automobile approaching him; that the defendant's vision and view of the road ahead was impaired, obscured and obstructed by the headlights of the automobile he was meeting; that the highway at the point where the deceased was killed is straight for a distance of not less than 200 yards in each direction from the point of impact; that the defendant at the time was negligent in that he was operating his automobile while under the influence of intoxicating liquors; that although the defendant was blinded by the headlights of the approaching automobile and his vision of the road ahead was impaired, obscured and obstructed by such lights, he nevertheless negligently failed to reduce the speed of his automobile, but continued to drive at a high, dangerous and excessive rate of speed, to wit, 55 to 60 miles per hour, at a time when his view of the road ahead was not clear and his vision of the road was impaired, obscured and obstructed by such headlights; that at such time and on such occasion the defendant was negligent in the following respects: in that he was operating his automobile at a high, excessive and dangerous rate of speed, not less than 55 to 60 miles per hour; in operating his automobile at a rate of speed of 55 to 60 miles per hour while meeting and passing another automobile; in operating his automobile at 55 to 60 miles per hour at a time when he was blinded by headlights of the automobile he was meeting on the highway; in failing to reduce the speed of his automobile upon approaching, meeting and passing such other automobile; in operating his automobile at a speed of 55 to 60 miles per hour at a time when his vision of the road ahead was not clear, but was impaired, obscured and obstructed by lights of the vehicle he was meeting; in failing to have his car under immediate control under the conditions and circumstances herein alleged; in operating his automobile at such time and place while under the influence of intoxicating liquors; in failing to use ordinary care and diligence under the conditions and circumstances alleged; in failing to anticipate the presence of a pedestrian on the highway; in permitting his automobile to strike and kill the deceased; that such acts on the part of the defendant were the sole and proximate cause of the deceased's death and the consequent injury and damage to the plaintiffs. The defendant's general demurrer to the petition was overruled and he excepts.
If for no other reason we think the petition alleged a good cause of action on the alleged negligence of continuing to drive 55 miles per hour when blinded by the lights of an approaching vehicle. "The driver of a car who is blinded by the lights of an oncoming car should exercise a care and caution commensurate with the increased danger to others who may be traveling the same road." Sprayberry v. Snow, 59 Ga. App. 744 (5) ( 1 S.E.2d 756). Motor vehicles and pedestrians have equal rights on the highway, the right of the automobile not being superior to that of the pedestrian. O'Dowd v. Newnham, 13 Ga. App. 220 (1) ( 80 S.E. 36); Flowers v. Faughnan, 31 Ga. App. 364 (1) ( 120 S.E. 670). The driver of a motor vehicle has no right to assume that the way ahead is clear, but he must keep a vigilant lookout ahead for pedestrians in traffic. Sapp v. Shumate, 81 Ga. App. 432, 435 ( 59 S.E.2d 8); Claxton v. Hooks, 68 Ga. App. 383, 385, ( 23 S.E.2d 101); Lorig v. Brunson, 84 Ga. App. 558, 562 ( 66 S.E.2d 268). Under the last-stated principle of law we think a jury would be authorized to find that continuing to drive an automobile at a speed of 55 miles per hour while blinded by lights of an approaching vehicle constituted negligence and the proximate cause of the deceased's death.
Contrary to the contentions of the plaintiff in error, the petition did not show that the deceased was negligent to such an extent as would bar a recovery. It was not negligence to walk on the side of the road so as to be facing traffic. A pedestrian is not restricted as to which side of a road he is to travel on. Claxton v. Hooks, supra, p. 385; Lorig v. Brunson, supra, p. 562. As to the contention that the deceased by the exercise of ordinary care could have seen the lights of the defendant's approaching automobile and avoided being struck, a pedestrian lawfully upon the public highways need not be continually looking and listening for approaching vehicles under the penalty that if he fails to do so and is injured, it must be conclusively presumed that he was negligent. O'Dowd v. Newnham, supra, headnote (2); Flowers v. Faughnan, supra, headnote (1). Walking upon the paved portion of the highway two feet from the edge is not of itself negligence such as would prevent a recovery under the allegations of the petition.
The petition alleged a cause of action as against the defendant and the court did not err in overruling the general demurrer thereto.
Judgment affirmed. Sutton, C.J., and Worrill, J., concur.