Baker v. Shockey, 35601

• Decision Date: 16 May 1955
• Docket Number: No. 35601,No. 1,35601,1
• Citation: 92 Ga.App. 443,88 S.E.2d 741
• Parties: F. W. BAKER et al. v. A. J. SHOCKEY
• Court: Georgia Court of Appeals

Page 741

88 S.E.2d 741

92 Ga.App. 443

F. W. BAKER et al. v. A. J. SHOCKEY.

No. 35601.

Court of Appeals of Georgia, Division No. 1.

May 16, 1955.

Rehearing Denied June 28, 1955.

Syllabus by the Court.

Since the evidence did not authorize a verdict for the plaintiff, the court erred in overruling the defendants' motion for a judgment notwithstanding the verdict.

Albert James Shockey sued Mrs. Frank W. Baker and Frank W. Baker for damages allegedly caused by Mrs. Baker's negligent operation of an automobile.

The plaintiff was operating his automobile along Roswell Road traveling from Sandy Springs, Georgia, to Atlanta. It had snowed the night before and the pavement in the roadway was wet. The plaintiff was driving along at about 45 miles per hour and as he started around the first curve in an 's-curve' he notice an old automobile in front of him traveling in the same direction as the plaintiff and at a very slow rate of speed. The plaintiff testified: '* * * it was going real slow and I was going fairly good and I didn't want to pass him on the curve, so I put on my brakes and when I did the car started to skidding and rather than to run into the back of him I had to cut to the left, which took me across the road and through the fence and down into this little embankment * * *.' The plaintiff's automobile continued over the embankment and down into a ravine and turned over. The plaintiff then crawled from his wrecked automobile and made his way across the road to a house and made several phone calls, one of which was for wrecker service to recover his automobile. He then returned to his automobile where he gathered up some loose automobile parts and put them in the trunk of his automobile. While there he also talked with the owner of the land about the damage to the fence caused by his car's leaving the road. He then took a position up the embankment away from his automobile and towards the top of the embankment, near a tree. After standing at this point for some minutes he observed a car on the roadway swerve or skid and determined that he was in a dangerous position. As he was walking to a new position Mrs. Baker's automobile came through the fence and struck him. He did not see Mrs. Baker's automobile until it had left the road and was coming through the fence, which was about ten feet away from him.

After the plaintiff had gone back to the ravine and was standing near the tree, Mrs. Baker was driving along Roswell Road in the same direction in which the plaintiff had been driving and when she reached the same vicinity in which the plaintiff had skidded, her automobile began to skid and she went over the embankment into the ravine, striking the plaintiff. She did not see the plaintiff at all during this time.

The acts of negligence alleged against Mrs. Baker were as follows: '1. In operating the said automobile on said Roswell Road at a reckless and dangerous rate of speed. 2. In failing to keep a lookout ahead in the direction in which the defendant, Mrs. Frank W. Baker, was driving. 3. In failing to have the said automobile under immediate control. 4. In failing to apply the brakes of the automobile in sufficient time to avoid hitting and striking the plaintiff. 5. In failing to bring the said automobile to a stop prior to colliding with and striking the plaintiff. 6. In operating the said automobile across the left lane, or east lane, of Roswell Road, and off onto the dirt on the east side of Roswell Road and colliding with the plaintiff as hereinbefore described. 7. In applying the brakes of the said automobile in such a manner as to cause the automobile to go out of control of the defendant, Mrs. Frank W. Baker. 8. In failing to hold onto the steering wheel of the automobile to retain control of the same. 9. In failing to operate the said automobile in the right hand side lane, or west lane, of Roswell Road in the direction defendant, Mrs. Frank W. Baker, was proceeding. 10. In failing to give any warning to plaintiff prior to striking and injuring him.'

At the close of the evidence the defendants moved for a directed verdict which motion was denied. The jury returned a verdict for the plaintiff against both defendants. The defendants then moved for a judgment notwithstanding the verdict and this motion was denied. The defendants' amended motion for a new trial was denied. The defendants except to the overruling of their motion for a judgment notwithstanding a verdict and their motion for a new trial.

Marshall, Greene & Neely, Barrett & Hayes, Atlanta, for plaintiff in error.

John L. Westmoreland, Sr., John L. Westmoreland, Jr., Atlanta, for defendant in error.

FELTON, Chief Judge.

The evidence did not show any negligence on the...