Hollis v. Lipp

Bell, Presiding Judge. Defendant took this appeal from the denial of his motion for summary judgment in a suit to recover for injuries sustained when plaintiff, a pedestrian, was struck down by defendant’s automobile. It appeared that plaintiff was running across a street in the dark in a heavy [576] rain, apparently without looking, and that defendant had the right of way. However, the fact that defendant did not see plaintiff until she was four or five feet in front of the vehicle, which he admitted in his deposition, was alone sufficient to indicate a jury issue on the question of his negligence in failing to maintain a proper lookout ahead. It is not necessary to discuss additional details which militate against summary judgment in this case. The trial court’s denial of summary judgment was so clearly correct that it would have been preferable not to certify the decision for immediate review under Section 56 (h) of the Civil Practice Act (Code Ann, § 81A-156 (h); Ga. L. 1967, pp. 226, 238). See Judge Deen’s comments in C & A Land Co. v. Wilson Constr. Corp., 117 Ga. App. 744 (161 SE2d 922) and Judge Hall’s comments in Rockmart Finance Co. v. High, 118 Ga. App. 351 (163 SE2d 758). Argued September 5, 1968 Decided October 30, 1968. Sims & Lewis, James R. Lewis, Wyatt & Wyatt, L. M. Wyatt, for appellant. E. W. Fleming, for appellee. Judgment affirmed. Hall and Quillian, JJ., concur.