As the appellant was leaving a mobile home park owned by the appellee late one night, he drove his motorcycle into a pile of asphalt located on the roadway, sustaining serious injuries. He sued, alleging that the collision was caused by the appellee's negligence in failing to maintain the roadway in a safe condition. The appellee, on the other hand, contends that the collision resulted from the appellant's own negligence in failing to avoid an obstruction which was both obvious and known to him. This appeal is from the grant of the appellee's motion for summary judgment.
The appellant testified in his deposition that he had seen the pile of asphalt on previous occasions but that he did not see it on the night in question because in the darkness it blended in with the roadway and because his attention was focused on avoiding various potholes and washouts which also obstructed the road. He admitted that there was a streetlight directly above the pile of asphalt but stated that the asphalt was shaded from it by a bush. Held: