Bynes v. Stafford
| Decision Date | 11 July 1962 |
| Docket Number | No. 1,Nos. 39519,39520,s. 39519,1 |
| Citation | 127 S.E.2d 159,106 Ga.App. 406 |
| Parties | F. M. BYNES et al. v. H. M. STAFFORD, Next Friend, et al. Herschell WELLS v. H. M. STAFFORD, Next Friend, et al |
| Court | Georgia Court of Appeals |
Bouhan, Lawrence, Williams, Levy & McAlpin, Kirk McAlpin, Lewis, Wylly & Javetz, E. H. Gadsden, Savennah, for Bynes.
Frank O. Downing, Cowan, Zeigler, Downing & McAleer, Savannah, for Herbert and Patrick Stafford.
Bouhan, Lawrence, Williams, Levy & McAlpin, Kirk McAlpin, Savannah, for Herschel Wells.
Syllabus Opinion by the Court
These are appeals from the overruling of motions for judgment notwithstanding the verdict and amended motions for new trial made by the defendants Bynes (plaintiffs in error in Case No. 39519) and the defendant Wells (plaintiff in error in Case No. 39520) after a verdict and judgment of $55,000.00 for the 4-year-old plaintiff (defendant in error in each case). The plaintiff alleged that he was injured when an ambulance owned by the defendants Bynes, while being driven negligently by the defendant Wells as their agent, servant and employee, collided in an intersection with another vehicle and then ran on to the sidewalk and hit the plaintiff. Held:
1. After the plaintiff had presented his evidence the defendants made motions for directed verdict which the trial court overruled. The defendants introduced no evidence. Prior to the enactment of the act of 1961, (Ga.L.1961, Vol. I, p. 216) a motion for a directed verdict could not be made by the defendant when the defendant had introduced no evidence. Norman v. Norman, 103 Ga.App. 626, 631, 120 S.E.2d 42. The trial court did not err in denying the defendants' motions for judgment notwithstanding the verdict in accordance with their motions for directed verdict made on December 20, 1960, since the motions for directed verdict were properly denied. Heiman v. Wynn, 216 Ga. 569, 118 S.E.2d 478.
2. The defendants filed answers admitting the plaintiff's allegations of agency and thereafter amended their answers by striking the paragraph admitting the allegations of agency and substituting a paragraph denying these allegations. In support of the general grounds of its motion for new trial the defendants Bynes contend that the evidence was insufficient to support a finding of agency essential to uphold the verdict against them, for the reason that the admissions in defendants' original answer were the only evidence of agency, and these were contradicted by the depositions of the parties. The cases cited by the defendants, are expressions of the rule that 'the testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him when it is self-contradictory, vague, or equivocal,' and if such testimony is the plaintiff's only evidence it cannot withstand a nonsuit. Douglas v. Summer, 213 Ga. 82, 85, 97 S.E.2d 122; Mead v. McGee, 215 Ga. 574, 575, 111 S.E.2d 234. This rule does not apply when the plaintiff offers other evidence than his own testimony such as an 'extra-judicial statement, which in some ways contradicted his testimony.' Tuggle v. Waller, 91 Ga.App. 721, 724, 87 S.E.2d 123, 125.
A stricken pleading containing an admission is evidence just as an out-of-court statement of a party inconsistent with his contention in the present litigation is evidence. Raleigh & Gaston R. Co. v. Allen, 106 Ga. 572, 574, 32 S.E. 622; Alabama Midland Ry. Co. v. Guilford, 114 Ga. 627, 629, 40 S.E. 794; Green, Ga. Law of Evidence, 539, § 250; accord William Hester Marble Co. v. Walton, 22 Ga.App. 433, 96 S.E. 269, and cases cited therein.
Ladson Motor Co. v. Croft, 212 Ga. 275, 277, 92 S.E.2d 103, and other cases cited by the defendants, dealing with the rule that circumstantial evidence consistent with either of two opposing theories establishes neither, are not applicable.
This court cannot weigh the evidence, and since there is some evidence to support the verdict we must uphold it. Raleigh & Gaston R. Co. v. Gaston, supra, 106 Ga., p. 575, 32 S.E. 622; Tuggle v. Waller, supra, 91 Ga.App. p. 724, 87 S.E.2d 123.
3. Defendants argue that there was no evidence of negligence, because the evidence showed that the ambulance was being operated in compliance with the requirements of Code Ann. § 68-1604 for authorized emergency vehicles and had the right to 'proceed past a red or stop signal or stop sign, but only after slowing down as may be necessary for safe operation,' and to 'exceed the speed limits * * * so long as he does not endanger life or property;' and because the evidence showed that the defendant Wells, the driver, slowed down before entering the intersection and was otherwise operating the ambulance with due regard for safety.
Neither proceeding past a stop signal nor exceeding the speed limit by an authorized emergency vehicle is of itself negligence. Royal Cab. Co.Inc. v. Hendrix, 96 Ga.App. 44, 96 S.E.2d 355; see ...
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