Atlanta Coca-Cola Bottling Co. v. Jones, COCA-COLA

Decision Date18 June 1975
Docket NumberCOCA-COLA,No. 50217,No. 2,50217,2
Citation135 Ga.App. 362,218 S.E.2d 36
PartiesATLANTABOTTLING COMPANY et al. v. Jack JONES
CourtGeorgia Court of Appeals

Hurt, Richardson, Garner & Todd, T. Cullen Gilliland, J. Robert Persons, Atlanta, for appellants.

Rich, Bass, Kidd & Witcher, Casper Rich, Decatur, for appellee.

PANNELL, Presiding Judge.

In this negligence case, involving a rearend collision, defendants Atlanta Coca-Cola Bottling Company (hereinafter referred to as 'company') and Jerry Lee Byrd (hereinafter referred to as 'driver') assign error upon the trial court's directed verdict for the plaintiff of the issue of liability, the jury's verdict for the plaintiff in the amount of $35,000, and the trial court's overruling of defendant's motion for a new trial on various grounds.

The circumstances surrounding the collision were described by the plaintiff and witness Baxter. Defendants' truck was traveling about one and one-half or two car lengths behind plaintiff's vehicle in the lefthand lane of a three-lane expressway. Both vehicles were going approximately 55 miles per hour when a truck in the opposite lane struck the guard rail, sending a large metal object across the highway and in front of plaintiff's vehicle. Plaintiff took his foot off the gas pedal and was then struck from the rear by defendants' truck. Defendant-driver received a citation for following too closely and subsequently pleaded guilty to this charge in traffic court. Company admitted the agency relationship in its pleadings and defendants presented no evidence at trial. Held:

1. Defendants assert that plaintiff's motion for a directed verdict was improvidently granted, in that factual issues remained concerning defendant-driver's negligence, plaintiff's contributory negligence, and defendants' pleaded defenses of unavoidable accident and sudden emergency. While questions concerning negligence 'are peculiarly matters for the jury, and a court should not take the place of the jury in solving them, except in plain and undisputable cases' (Powers v. Pate, 107 Ga.App. 25, 27, 129 S.E.2d 193, 195), nevertheless where 'there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.' Code Ann. § 81A-150(a). We look then to the pleadings and to the evidence presented thereon in determining the soundness of the lower court's ruling.

Was there any evidence from which the jury might reasonably have concluded that defendant-driver was not negligent? From plaintiff's testimony concerning the speed at which he was traveling and the distance at which the Coca-Cola truck was following, the jury could only have concluded that defendant-driver was negligent in following too closely. In addition, driver's plea of guilty to the charge of following too closely, Section 63(a) of the Uniform Act Regulating Traffic on Highways (Ga.L.1953, Nov. Sess., pp. 556, 585; Code Ann. § 68-1641, repealed by Ga.L.1974, pp. 633, 691, but in effect for the purpose of this case) operates as an 'admission against interest' and is a significant factor in determining negligence. See Johnson v. Curenton, 127 Ga.App. 687, 689, 195 S.E.2d 279.

In arguing that its negligence was not conclusively shown, defendants rely upon witness Baxter's testimony that the Coca-Cola truck 'was in good stopping distance.' This statement, however, was in response to a question concerning the relative distances of the two vehicles at the time when the witness first saw the truck. Even if we assume that this statement relates to that time immediately preceding the collision, it merely suggests an alternative theory of defendant-driver's negligence. See Code Ann. § 68-1626.

'If, considering all the surroundinds and accompanying circumstances, an event is such 'as in the ordinary course of things would not have occurred if the defendant had used ordinary care, negligence may be presumed, and place upon the defendant the burden of explaining the cause of the occurrence. " McCann v. Lindsey, 109 Ga.App. 104, 135 S.E.2d 519. Since the defendant-driver offered no legal reason or excuse for his failure to avoid colliding with the rear of plaintiff's vehicle, no factual issue remained with respect to his negligence.

Was there any evidence from which the jury might reasonably have concluded that plaintiff was contributorily negligent? Defendants rely upon Section 69(c) of the Uniform Act Regulating Traffic on Highways (Ga.L.1953, Nov. Sess., pp. 556, 587; Code Ann. § 68-1647(c), repealed by Ga.L.1974, pp. 633, 691, but in effect for the purposes of this case), which provides that, 'No person shall stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal in the manner provided herein to the driver of any vehicle immediately to the rear when there is opportunity to give such signal.' (Emphasis supplied.) While the evidence indicates that plaintiff did 'suddenly decrease' the speed of his vehicle, there is nothing to indicate that he had any opportunity to give the appropriate signal. To the contrary, the record clearly shows that a large metal object 'suddenly' flew in his path.

Defendants further argue that the jury may have inferred contributory negligence based upon the provisions of Section 55(b) of the Uniform Act Regulating Traffic on Highways (Ga.L.1653, Nov. Sess., pp. 556, 581; Code Ann. § 68-1633(b), repealed by Ga.L.1974, pp. 633, 691, but in effect for the purposes of this case). This Section provides that 'any vehicle proceeding at less than the normal speed of traffic at the time and place and under the conditions then existing shall be driven in the righthand lane then available for traffic . . .' There was no evidence tending to show that plaintiff's speed of 55 miles per hour was in any way 'less than the normal speed of traffic'; nor does the record disclose that the lanes to his right were 'then available.' Defendants' reliance upon this statute is therefore misplaced.

The cases relied upon by defendants' counsel are distinguishable from the factual situation presented herein. In Hay v. Carter, 94 Ga.App. 382, 384, 94 S.E.2d 755, the pleadings presented a question of fact as to whether the collision was caused by defendant's negligence in striking the rear of plaintiff's car or by plaintiff's negligence in suddenly stopping his vehicle without warning and for no apparent reason. Since the record was 'entirely silent as to the cause of the collision', a new trial was required. In Hargrove v. Tanner, 98 Ga.App. 16, 104 S.E.2d 665, there was evidence showing that plaintiff, prior to being hit from the rear by defendant, was negligently driving too close to the cars in front of him and was therefore forced to quickly change lanes in order to avoid hitting the car ahead. Thomason v. Willingham, 118 Ga.App. 821, 823, 165 S.E.2d 865 involved an erroneous jury charge which placed 'an absolute duty on the motorist to stop or be able to stop under any and all circumstances, when the true rule is that he is required to exercise ordinary care and drive his vehicle in the manner of an ordinarily prudent man.' Harper v. Plunkett, 122 Ga.App. 63, 176 S.E.2d 187, is not controlling since there the evidence showed that the plaintiff may have been negligent in following too closely and in stopping his car suddenly prior to being hit from the rear by defendant. Cravey v. J. S. Gainer Pulpwood Co., Inc., 128 Ga.App. 465, 197 S.E.2d 171 is also clearly distinguishable, since a question of fact remained concerning the defendant-employer's liability for the acts of its agent.

The issue presented here by defendants is controlled rather by the principles enunciated in Sutherland's Eggs, Inc. v. Barber, 116 Ga.App. 393, 157 S.E.2d 491. In a factual setting similar to the case sub judice, this court, noting that there was no evidence that the plaintiff made a sudden stop, affirmed the trial court's directed verdict on the question of liability. 'As in Pike v. Stafford, 111 Ga.App. 349, 141 S.E.2d 780, the evidence in the present case shows that while the plaintiff...

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11 cases
  • Sears, Roebuck & Co. v. Chandler
    • United States
    • Georgia Court of Appeals
    • November 21, 1979
    ...to sustain, rather than to destroy the verdict, for every presumption and inference is in its favor." Atlanta Coca-Cola Bottling Co. v. Jones, 135 Ga.App. 362, 368, 218 S.E.2d 36, 40. Applying the standards cited above to the facts of this case, we do not find the award of $18,000 to be exc......
  • Atlanta Coca-Cola Bottling Co. v. Jones
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    ...application for a writ of certiorari to review the decision and judgment of the Court of Appeals in Atlanta Coca-Cola Bottling Co., et al. v. Jones, 135 Ga.App. 362, 218 S.E.2d 36 (1975). We granted the writ for the purpose of determining whether the Court of Appeals committed error in affi......
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    ...by the wording of the CPA . . . Code § 81A-115(a).' Ga.Prac. & Proc., § 7-2 (4th Ed.). Compare with Atlanta Coca-Cola Bottling Co. v. Jones, 135 Ga.App. 362, 367(2),218 S.E.2d 36 where this court ruled the trial court did not abuse its discretion in permitting plaintiff to amend the complai......
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    ...rather than to destroy the verdict, for every presumption and inference is in its favor. (Cits.).' Atlanta Coca-Cola Bottling Co. v. Jones, 135 Ga.App. 362, 368, 218 S.E.2d 36, 40. Amounts awarded in other cases are of slight use in determining excessiveness because 'to make any comparison ......
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