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Action for damages. Floyd Superior Court. Before Judge Scoggin.
DEEN, Judge.
As against general demurrer, the petition sufficiently alleges facts showing negligence on the part of the defendant in erecting an unlighted warning sign in the middle of a highway in an area of poor visibility for travelers approaching from the plaintiff's direction, and poses a jury question as to whether the plaintiff's injuries were due to his own negligence in not discovering and avoiding the obstruction.
The plaintiff was driving his automobile at about 20 miles per hour on a public highway at 6 a.m. at a time when it was dark, raining, and of poor visibility. He crossed a bridge, immediately north of which was a section of the street approximately 100 feet wide, in the middle of which the defendant railroad had placed a large metal sign and warning device enclosed by a large circular fence which, because it was below the level of the bridge, was obscured from the vision of persons proceeding like the plaintiff in a northerly direction. The obstruction was unlighted and could not be seen until the plaintiff was within 10 feet of it, at which time he was unable to avoid it and in the resultant collision sustained described injuries. The petition alleges that the maintenance of the fence for a period of more than two days prior to the collision was negligence per se in violation of Code 95-603 and that the defendant was further negligent in placing the barrier in a place where it was obscured from the vision of persons crossing the bridge, failing to warn persons using the highway of its existence and failing to have it lit. A general demurrer was sustained and the plaintiff appeals.
1. "A motorist upon the public highways of this State has a right to assume that the road ahead of him is clear. Mathis v. Nelson, 79 Ga. App. 639, 642 (54 SE2d 710)." State Constr. Co. v. Johnson, 82 Ga. App. 698, 701 (62 SE2d 413). Where he has no knowledge of the obstruction, whether he has himself exercised the care required of him under the circumstances to avoid injury to himself is a jury question. Powell v. Barker, 96 Ga. App. 592, 600 (101 SE2d 113), and see Doby v. W. L. Florence Constr. Co., 71 Ga. App. 888 (4, 6) (32 SE2d 527); Rogers v. Johnson, 94 Ga. App. 666, 678 (96 SE2d 285); Trammell v. Matthews, 84 Ga. App. 332, 337 (66 SE2d 183). "A plaintiff is not necessarily guilty of such negligence as would bar a recovery for injuries sustained as the result of his running into an obstruction in a highway, as against one negligently obstructing the highway or street, by reason of the mere fact that he operates his automobile along such highway or street at night and at such a speed as would render it impossible for him to stop within the distance illuminated by his headlights." Central of Ga. R. Co. v. Brower, 102 Ga. App. 462, 466 (116 SE2d 679). Whether the defendant was negligent in placing an unlighted warning sign in the middle of the street, and whether the plaintiff who ran into it failed to exercise due care for his own safety are both jury questions. The trial court erred in dismissing the petition.
Judgment reversed. Jordan, P. J., and Pannell, J., concur.
Matthews, Maddox, Walton & Smith, Oscar M. Smith, James A. Robbins, Jr., for appellee.
James I. Parker, for appellant.
Friday May 22 18:56 EDT

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