Myers v. Barnard , 180 Ga. App. 192 ( 1986 )

Deen, Presiding Judge,

dissenting.

I must respectfully dissent. Myers filed a counter-affidavit in opposition to the motion for summary judgment in which he claimed that he stopped at an intersection for a red light and had just restarted his motorcycle when he was overtaken by the defendant’s vehicle and struck from the rear. He further claimed that at the time of the accident his taillight was in working order and being operated. This affidavit, however, was not timely filed, as it was not filed until one week after the trial court ruled on the motion. In his answers to interrogatories, Myers did not deny that his taillight was inoperative. The only real conflict in the evidence is where the accident occurred. As the accident occurred at approximately 12:45 a.m., he was required to have an operating taillight. While appellant claims that the accident occurred in the intersection and appellee’s affidavit states that it occurred after he passed through the intersection, there is no conflict as to the lighting conditions. Appellant’s answers to interrogatories do not state what the conditions were, and appellee states that he “proceeded through the intersection of Abercorn Street and Montgomery Crossroads. This is a dimly lit or unlighted portion of Abercorn Street.” Therefore, regardless of the conflicting evidence of where the accident occurred, there is no conflict in the evidence that the accident occurred in a dark area and that appellant’s taillights were not operating. Accordingly, I find there are no facts requiring jury resolution and would affirm.

I am authorized to state that Judge Sognier joins in this dissent.