Dykes v. Hammock, s. 42899
| Decision Date | 08 September 1967 |
| Docket Number | 42900,No. 3,Nos. 42899,s. 42899,3 |
| Parties | Nellie S. DYKES v. Raymond HAMMOCK. Raymond HAMMOCK v. Neille S. DYKES |
| Court | Georgia Court of Appeals |
John P. Nixon, Warner Robins, for appellant.
Martin, Snow, Grant & Napier, Hendley V. Napier, Macon, for appellee.
Syllabus Opinion by the Court
J. KELLEY QUILLIAN, Judge.
1. The plaintiff filed a petition alleging in part: that the defendant, owner of a used car lot, negligently placed a chain on the pavement in an area where his customers would walk; that as a result of stepping on the chain she fell and sustained certain injuries. However, on deposition she testified, 'Something rolled under my foot is what throwed me.' While she testified she fell in the area where the chain was located neither she nor any other witness testified that she actually stepped on the chain causing her to fall. It is true, in opposition to a motion for summary judgment, she filed an affidavit which stated she stepped on the chain. However, if a plaintiff testifies to facts in one instance and also testifies that he does not know them to be true, this neutralizes his testimony and proves nothing. Hamby v. Hamby, 99 Ga.App. 808, 820, 110 S.E.2d 133; Robertson v. Carroll Furniture Company, 54 Ga.App. 841, 189 S.E. 273; Wallace v. State, 55 Ga.App. 872, 875, 192 S.E. 81. Testimony of a party in his own behalf must be construed most strongly against him, if self-contradictory, vague or equivocal, and without other evidence of a right to recover, he is not entitled to a finding if his testimony, so construed, shows that the verdict should be against him. Douglas v. Sumner, 213 Ga. 82, 85, 97 S.E.2d 122. A summary judgment is analogous to a directed verdict McCarty v. National Life &c Ins. Co., 107 Ga.App. 178, 179, 129 S.E.2d 408; Standard Accident Insurance Company v. Ingalls Iron Works Company, 109 Ga.App. 574, 136 S.E.2d 505; Pike v. Stafford, 111 Ga.App. 349, 141 S.E.2d 780 and if this case had gone to trial, under the above evidence, the defendant would have been entitled to the direction of a verdict. Under the principles stated in the above cited authorities, the judge of the superior court did not err in sustaining the defendant's motion for summary judgment. See Abner v. W. T. Grant Company, 110 Ga.App. 592, 139 S.E.2d 408; Daniell v. Collins, 222 Ga. 1, 3, 148 S.E.2d 295.
2. In view of the ruling in Division 1 of this opinion, the...
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