Barnett v. Thomas, 46908

• Decision Date: 16 June 1972
• Docket Number: No. 3,No. 46908,46908,3
• Parties: Larry L. BARNETT et al. v. Elizabeth F. THOMAS et al
• Court: Georgia Court of Appeals

Page 450

191 S.E.2d 450

126 Ga.App. 587

Larry L. BARNETT et al. v. Elizabeth F. THOMAS et al.

No. 46908.

Court of Appeals of Georgia, Division No. 3.

June 16, 1972.

Rehearing Denied July 6, 1972.

Syllabus by the Court

'Questions of negligence, diligence, contributory negligence and proximate cause are peculiarly matters for the jury, and a court should not take the place of the jury in solving them, except in plain and indisputable cases.' Maddox, Bishop, Hayton, etc., Contractors v. Lambdin, 123 Ga.App. 61, 64, 179 S.E.2d 310. However, where there is no conflict in the evidence, and that introduced with all reasonable deductions or inferences therefrom, shall demand a particular verdict, the court should direct the jury to find for the party entitled thereto.

Martin, Snow, Grant & Napier, George C. Grant, T. Baldwin Martin, Macon, for appellants.

Jones, Cork, Miller & Benton, E. Bruce Benton, H. Jerome Strickland, George N. Skene, Macon, for appellees.

PANNELL, Judge.

This is an appeal from the overruling of a motion for a new trial, and from the overruling of judgment notwithstanding the verdict in a tort action involving an automobile collision, in which judgment was rendered in favor of the plaintiff-appellee and against the defendant-appellant, the driver and owner of a tractor or truck, cab over engine type, used to pull trailer trucks. The locale of the collision was a stretch of Interstate highway with two lanes in each direction; and in bright daylight. The vehicles involved were the tractor (without the trailer), a stationwagon driven by appellee Fassell and another automobile driven by plaintiff-appellee's husband. All vehicles were headed north. The Fassell and Thomas vehicles were traveling in the right lane, the Fassell car in the lead, and as the cars rounded a curve and topped a hill, the tractor was parked on the emergency strip off the right lane about a quarter of a mile or more down the road from the crest of the hill, and was seen by both drivers. The driver of the Thomas automobile gave this version of what occurred. He testified that both the Fassell and Thomas cars were in the right lane and that immediately before the curve, the Fassell car began to slow down slightly and as they went around the curve Thomas could see the truck on the right; that he noticed the road was open in the left lane and, when he was three or four car lengths behind Fassell, and one-third of the way down the hill, he pulled over to the left to pass the Fassell car; that he was gaining on the Fassell car, traveling between 65 to 70 miles per hour, and was almost to the back end of the Fassell car, at a point closer to the truck than the top of the hill, when all at once the Fassell car cut over into the left lane. Thomas hit his brakes to keep from hitting the Fassell car and moved into the right lane and he saw the tractor directly in front of him in the right lane of the highway at approximately 40 feet ahead. The skid marks showed on the pavement for a distance of approximately 40 to 50 feet before the impact with the truck. The driver of the Thomas car saw the truck only twice. First, when it was parked on the strip when he came over the hill, and second time when he was only 40 feet from it, too late to avoid hitting it. The explanation was that the Fassell car probably obstructed the view. There was no traffic between the two automobiles and the tractor. There is no evidence there were any other automobiles behind them. A daughter of the Thomases corroborated her father's version of the collision, and that the Fassell automobile cut in very close, within less than a car length, as they were proceeding to gradually pass the Fassell car while the Thomas car was in the left lane. No one in the Thomas car saw the truck pull into the right lane of traffic. No one in the Thomas car could estimate the speed of the truck at the time they first saw it, immediately prior to the collision, except it was going slowly. In attempting to pass the Fassell vehicle, Thomas was gradually speeding up. Thomas testified that he could not have stopped and prevented hitting the stationwagon and that was the reason he cut to the right lane.

Mr. Fasswell testified that as he was going down the hill the truck started pulling out, he glanced in his rearview mirror and the side mirror, and approximately 10 car lengths behind he saw the Thomas car in the left-hand lane; that he gave a left-hand blinker signal and proceeded to get into the left-hand lane and was within 30 feet of the truck when the Thomas car passed him on the right and hit the truck in the rear; that he was approximately half way down the hill, or half way down to where the truck was, which was about 700 feet when he got into the left-hand lane and the tractor got into the right lane; that he didn't see the Thomas car any more after he got into the left-hand lane until it passed him on the right. Fassell further testified that the tractor gave no blinker lights or anything to indicate that he was going to come out into the right lane of traffic; that when he saw the truck beginning to start out he was going about 65 miles an hour and that he never noticed the Thomas vehicle in the right-hand lane at any point prior to the collision; that he did not know the distance of the Thomas car from his rear when he actually gave his signal and moved into the left lane. Fassell also estimated that when the Thomas car cut to the right, his car was about 30 feet from the truck and at the time of the impact of the Thomas car with the truck he was about 15 to 20 feet from the truck; that when the Thomas car pulled up to his right he started slowing down. He also testified that when he first pulled into the left-hand lane to pass the truck he was running at a speed that was slower than the Thomas vehicle. On cross examination, Fassell testified that when he was about half way down the hill he moved into the left lane and the truck moved into the right lane, the two cars being approximately 750 feet apart. He further testified that he considered the distance between him and the truck and between him and the Thomas car to be perfectly safe for him to switch to the left lane. Fassell estimated the speed of the truck at 30 miles an hour at the time of impact and was picking up speed.

Barnett, the driver of the tractor, testified that he had trouble with the generator and pulled on to the emergency strip and stopped...