If there is a genuine issue as to a material fact a motion for summary judgment should be denied.
Harris, a pedestrian, started across Ponce de Leon Avenue at its intersection with Bonaventure Avenue, walking from the south toward the north side in a crosswalk, at about 4:30 p.m. There was no traffic light at the intersection. He crossed the three lanes in which traffic moves easterly and had stepped across the line into a lane for westbound traffic, intending to catch a bus going to town. A vehicle operated by an unknown driver in the inside lane of westbound traffic was bearing down on him and it was apparent to Harris that if he did not move quickly he would be hit. Accordingly, he stepped backward about two steps and the vehicle went on by. However, he stepped into the pathway of a car driven by Stucki in the inside lane for traffic moving easterly, the two lanes being divided only by a solid white line. Witnesses to the incident testified by affidavit or by deposition that when Harris stepped back he stepped into the path of the Stucki car which was moving in the "flow of traffic" (very heavy at that time of day) at a speed of 30 miles per hour and which was no more than a car length away, that he was immediately hit by the Stucki car and knocked forward, which injured him, but that Stucki applied his brakes immediately when, he saw that Harris might step back into his pathway and that his car was stopped within about two feet of the point of impact.
All witnesses, save the plaintiff himself, testified that Harris stepped back across the "center line" into the lane of traffic in which the Stucki car traveled. He testified that though he stepped back perhaps as much as two steps he did not cross the line and hence that the Stucki car had necessarily crossed the line and struck him when he was still in the lane for westbound traffic.
Defendant moved for summary judgment, and plaintiff moved for summary judgment on the matter of liability. Plaintiff's motion was denied, defendant's motion was granted, and plaintiff appeals.
A summary judgment should be granted only when there is no genuine issue as to any material fact for submission to a jury. Holland v. Sanfax Corp., 106 Ga. App. 1 (126 SE2d 442)
; Dillard v. Brannan, 217 Ga. 179 (121 SE2d 768)
; Code Ann. 110-1203. In making the determination of whether there is a genuine issue as to a material fact the evidence is to be construed in favor of the opposing party. McCarty v. National Life &c. Ins. Co., 107 Ga. App. 178 (129 SE2d 408)
. Under Code Ann. 68-1656 (a) it becomes very material whether plaintiff stepped backward across the dividing line into the eastbound land of traffic. There is a conflict as to this in the evidence submitted, and hence a jury issue. Denial of plaintiff's motion was proper, but the grant of defendant's motion was error.
ON MOTION FOR REHEARING.
Defendant, moving for rehearing, urges that since plaintiff alleged in Paragraph 8 of his petition that he was "about to enter the southernmost of the two lanes marked for vehicular traffic traveling west [when] petitioner observed that an automobile traveling west in said lane was about to strike petitioner, and petitioner, in order to avoid being struck by said automobile, stepped backward, and was violently struck down by an automobile being operated by the defendant traveling east in the northernmost of the three marked lanes for traffic traveling east," plaintiff is bound by an admission in judicio that he was not across the dividing line and that defendant's vehicle was in its proper lane of traffic when it struck him.
Evidence contrary to these allegations might have been objected to and kept out of the summary judgment hearing, but nothing in this record indicates that any objections were made. Consequently, the contention now made is without merit. Planters Rural Telephone Co-op. v. Chance, 108 Ga. App. 146
, 147 (132 SE2d 90