Chancey v. Shirah, 36764
| Decision Date | 17 June 1957 |
| Docket Number | No. 36764,No. 2,36764,2 |
| Citation | 96 Ga.App. 91,99 S.E.2d 365 |
| Parties | H. L. CHANCEY v. Spencer SHIRAH |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. It is possible for circumstantial evidence to outweigh in probative value direct testimony inconsistent therewith, although the testimony of the witness be not otherwise impeached. Whether or not the circumstantial evidence here was both consistent with the conclusion reached and inconsistent with every other reasonable hypothesis as established by a preponderance of the evidence was a jury question. Where it appears that such evidence tends in a proximate and reasonable degree to establish the negligence of the defendant, and to render less probable an inconsistent hypothesis, the appellate court will not interfere with the verdict. The general grounds of the motion for new trial here urged on the basis that the plaintiff's evidence, which was circumstantial, was legally insufficient to show that his injuries were caused by operation of a truck belonging to the defendant, are without merit.
2. Where the plaintiff alleged negligence against the defendant in the use of wooden standards to hold a load of lumber on the trailer of his truck, and it was proved that one of such standards broke off and injured the plaintiff, it was not error on cross examination of the defendant to ask him questions relative to the comparative strength and safety of wooden and steel standards.
3. The negligence of the defendant's servant, if any, being imputable to him under the undisputed pleadings and evidence, there was no error in a reference by the court in his charge to the 'negligence of the defendant', rather than 'negligence of the driver of defendant's vehicle.'
4. The charge on the subject of damages, although inaccurate in part, was more favorable to the complaining party than he deserved, and, as against him, showed no reversible error.
Spencer Shirah filed an action for damages for personal injury in the Superior Court of Bacon County against Harold Chancey, owner of a certain Mack truck, alleging: that the plaintiff was traveling north on U. S. Highway No. 1 approximately 1 mile north of the city limits of Folkston and shortly before midnight, driving a 1949 Ford truck when he met defendant's truck, driven by his agent, and to the cab of which was attached a tandem trailer loaded with a cargo of lumber supported at the sides by wooden standards and steel chains; that the lumber had shifted in the trailer and forced the left standard into an almost horizontal position protruding into the plaintiff's lane of traffic; that as the trucks passed this standard struck the mirror on the left side of the plaintiff's truck and caused severe and permanent injuries to his arm; that the defendant was negligent in stacking the load of lumber, in using wooden standards which would easily break, and the agent was negligent in failing to make proper inspection, in continuing to operate the truck after this condition arose, in driving too close to the middle of the highway when meeting another vehicle, and in driving across the center lane of travel. On the trial the plaintiff supported by evidence the allegations of fact above set out, and further testified that he recognized the vehicle he met as a Mack truck loaded with lumber; other than that he could tell little about it. The impact occurred as the trailer of the truck passed his cab. The mirror had been pulled back so that it was not projecting from the side of the vehicle. When the plaintiff stopped, he noticed a lumber two-by-four lying in the center of the highway.
About two hours later, the defendant's lumber truck was located halted for repairs about four miles south of Folkston. The load of lumber on this truck had shifted to the left and three wooden two-by-four standards were broken off from the left side and missing. The sheriff who examined the vehicle removed the stubs and compared them with the splintered remains of three two-by-fours which he located in the highway at a place the identity of which tallied with the plaintiff's description of the point of impact. Comparison of the pieces of wood satisfied the witness that they corresponded in material, size, wood grain, etc., and these exhibits were introduced in evidence. The defendant's driver admitted proceeding along this point on the night in question, but contended that he arrived at Folkston nearly an hour before the time of impact as testified to by the plaintiff; that his lumber was in proper condition at that time, and that the load shifted and the standards broke off somewhere south of Folkston over a piece of particularly rough road.
The jury returned a verdict in favor of the plaintiff. The defendant filed his motion for new trial on the general grounds which was later amended by the addition of three special grounds, and the denial of this motion is assigned as error.
Leon A. Wilson II, Waycross, and R. E. Lawson, Alma, for plaintiff in error.
Kopp & Peavy, Waycross, for defendant in error.
1. It is strongly contended that the evidence, being circumstantial, and being in conflict with the direct testimony of the driver of the defendant's truck, as insufficient to support the verdict on the general grounds, as the plaintiff has failed to show that the truck by which he was injured belonged to the defendant. The rule to be applied by the appellate court in testing whether or not circumstantial evidence offered in the trial court is insufficient as a matter of law to support a verdict on some particular issue in the case is as follows: 'When the party upon whom the burden of an issue rests seeks to carry it, not by direct proof, but by inferences, he has not, in this reasonable sense, submitted any evidence for a jury's decision until the circumstances he places in proof tend in some proximate degree to establish the conclusion he claims; and for this the facts shown must not only reasonably support that conclusion, but also render less probable all inconsistent conclusions.' Georgia Ry. & Electric Co. v. Harris, 1 Ga.App. 714, 57 S.E. 1076, 1077; Armour & Co. v. Gulley, 61 Ga.App. 414(2), 6 S.E.2d 165. In the trial court the jury must decide whether the circumstantial evidence is not only consistent with the conclusion reached but also inconsistent with every other reasonable hypothesis, as established by a preponderance of the evidence. Herman v. Aetna Casualty & Surety Co., 71 Ga.App. 646, 31 S.E.2d 100. In the appellate court, it must appear that the circumstances proved tend in some...
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