Blanton v. Marchbanks, 52155

• Court: United States Court of Appeals (Georgia)
• Citation: 139 Ga.App. 158,228 S.E.2d 285
• Docket Number: No. 52155,No. 2,52155,2
• Parties: J. L. BLANTON et al. v. Corinne W. MARCHBANKS et al
• Decision Date: 01 June 1976

Page 285

228 S.E.2d 285 139 Ga.App. 158 J. L. BLANTON et al.
v.
Corinne W. MARCHBANKS et al. No. 52155. Court of Appeals of Georgia, Division No. 2. June 1, 1976.
Rehearing Denied June 23, 1976.

[139 Ga.App. 162] Carlisle & Carlisle, Ralph E. Carlisle, Decatur, for appellants.

Powell, Goldstein, Frazer & Murphy, Jerry B. Blackstock, James M. Griffin, Atlanta, for appellees.

[139 Ga.App. 158] MARSHALL, Judge.

Appellant Blanton in his own behalf and as next friend for his minor son Bobby, brings this appeal from the action of the trial judge in directing a verdict for Marchbanks at the conclusion of plaintiff's case and the subsequent denial of a motion for new trial.

The facts reflect that Bobby Blanton was riding his bicycle on the right outside edge of a heavily traveled road in Clayton County at about 5:30 P.M. on the afternoon in [139 Ga.App. 159] question. The evidence established that numerous cars proceeding in the same direction

Page 286

had passed Bobby without incident. Ms. Marchbanks for reasons not shown by the record suddenly applied her brakes, skidded and the car and the bicycle collided. Bobby asserted he was struck from behind because he never saw the car that collided with his bicycle. He stated he would have seen it if the car had been alongside. Bobby's only knowledge of the incident was that he was riding his bicycle in a normal fashion when suddenly he was violently propelled straight forward over the handlebars. No horn was sounded at or just before the incident. Two partial eyewitnesses stated all they saw was the boy flying through the air. One of these witnesses stated she heard the squeal of brakes and that is what attracted her attention. There was a dispute as to whether there was damage to the front and rear of the bicycle or only to the front. Bobby and his father both stated that only the front of the bicycle required repairs. Another witness, who removed the bicycle from the scene, stated the rear wheel was bent and would not freely turn.

The trial court, holding that the Blantons had presented no affirmative eyewitness testimony that Ms. Marchbanks was negligent in any particular manner, upon motion, directed a verdict for Marchbanks. Blanton enumerates four errors. The first two relate to the directing of these verdicts and the denial of the motion for new trial. The third relates to the alleged erroneous exclusion of evidence by the trial court. The fourth has been expressly abandoned. Held:

1. Marchbanks has filed with this court as well as the court below a motion to dismiss the appeal. The basis of the motion is that Blanton failed to provide for the filing of the transcript following his notice of appeal. It is noted that the direction of the verdict for Marchbanks occurred on September 10, 1975. The motion for new trial was denied on November 17, 1975. Blanton filed a pauper's affidavit on December 4, 1975. A notice of appeal was filed on December 9,...