Ellison v. Evans
| Decision Date | 31 January 1952 |
| Docket Number | No. 33856,No. 2,33856,2 |
| Citation | 85 Ga.App. 292,69 S.E.2d 94 |
| Parties | ELLISON et al. v. EVANS et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. Where, as here, the plaintiffs proved their case as laid, without at the same time disproving their right to recover by establishing the existence of other undisputed facts which show that they are not entitled to a verdict, it is error to award a nonsuit.
2. Where such testimony is otherwise relevant and material, a nonexpert witness who sees a motor vehicle in motion may testify as to his estimate of the speed thereof and the facts upon which he bases this estimate, the value of such opinion and the sufficiency or insufficiency of the facts to authorize it being questions for the jury.
This case is on review by direct bill of exceptions from the judgment of the trial court granting a nonsuit. The plaintiffs, as the case was finally amended, consist of the children and administrator of the estate of the husband of the deceased injured party, Mrs. Vassie Ellison (the husband having died during the pendency of the suit). The petition as amended named as defendants W. L. Evans, Clay Evans and Grady Hayes. From the plaintiffs' testimony it appears that W. L. and Clay Evans operated a business under the style of Evans Lumber Company in Roswell, Georgia; that they owned a certain truck which was customarily used in the business and driven by an employee of the company, Grady Hayes and that when the truck was not in use Hayes parked it at his home and used it for personal business; that one Earl Haynes, a brother-in-law of Hayes and also an employee of the firm, had been living in Carrollton, Georgia and desired to move his family to Roswell in order to be nearer his job; that he talked to Clay Evans about getting transportation for his household effects; that the defendant told him to get Grady Hayes any Saturday when he wasn't hauling lumber with the truck and he would move it. He further testified, 'I asked Clay Evans about me paying for the moving and he said he would treat me right on it, he said we would straighten it up after I got up there and got straightened out.'
This conversation took place on a Friday and the next day, Saturday, Grady Hayes was not hauling any lumber. He had received instructions from the other defendants that the next time he was in Atlanta he should get the truck serviced up and also pick up certain merchandise. That morning he and Earl Haynes, who was temporarily staying at his house, went to Atlanta in the truck and did these errands; Haynes then told Hayes what Mr. Evans had said concerning his moving the furniture any Saturday he wasn't hauling lumber, and suggested they go at that time 'since it would be that much closer and might be less expensive' for him. They then proceeded to Haynes' home in Carrollton and decided that they would need some planks to hold the furniture on the truck; Hayes was driving the truck en route to the lumberyard for this purpose when he rounded a curve and the truck got out of control, ran off the shoulder of the road and into a ditch, and, while traversing the shoulder of the road immediately after coming over a small hill and around a curve it hit Mrs. Ellison, who was at the time walking on the left shoulder of the road and who, as she saw the truck bearing down on her, turned to run up an adjacent driveway but was immediately struck in the back by the truck, receiving fatal injuries. Various acts of negligence were alleged, including violation of the speed limit, driving while intoxicated, operating the truck at a high and reckless speed around a curve and at an intersection, and operating said truck on the shoulder of the road when the view ahead was not clear, failing to keep the vehicle under control, and running into the deceased when she could have been seen at a distance of 40 feet or more. Evidence was also introduced as to the life expectancy and earning capacity of the deceased, and the value of her services.
At the conclusion of the evidence for the plaintiffs, counsel dismissed Grady Hayes as a party defendant, and the court thereafter granted a nonsuit as to the two remaining defendants, to which ruling exception is taken.
Oscar Roberts, Jr., Carrollton, Andrews, Nall & Sterne, Atlanta, for plaintiffs in error.
Harris, Henson & Gower, Atlanta, for defendants in error.
TOWNSEND, Judge (after stating the foregoing facts).
1. It is the duty of this court in deciding whether or not the trial court erred in granting a nonsuit to determine from the record of the testimony, together with all reasonable inferences to be drawn therefrom, whether the plaintiff has proved his case as laid. It is contended by the defendant in error that the plaintiff failed in this respect because the evidence here fails to support the allegation that the truck driver, Hayes, was at the time of the occurrence which resulted in the death of plaintiffs' decedent not acting in the scope of his employment. It is well settled that if the plaintiff proves his case as laid without at the same time disproving his right to recover by establishing the existence of other undisputed facts which show that he is not entitled to a verdict, it is error to award a nonsuit. Clark v. Bandy, 196 Ga. 546, 27 S.E.2d 17.
In testing a motion for nonsuit the evidence should be construed most strongly in favor of sustaining the action. The exception to this rule regarding the testimony of the plaintiff himself, as stated in Ray v. Green, 113 Ga. 920, 39 S.E. 470 is not applicable here. A nonsuit will be refused if there is even slight evidence to support the plaintiff's case. Clark v. Bandy, supra; Barnett v. Terry, 42 Ga. 283(3); Elrod v. McConnell, 170 Ga. 892, 154 S.E. 449. If the plaintiff's evidence, construed most favorably to him, makes out a prima facie case, a nonsuit should be refused. Brown v. Atlantic Coast Line Ry. Co., 79 Ga.App. 56, 52 S.E.2d 660; Henry v. Roberts, 140 Ga. 477, 79 S.E. 115. Counsel for the defendant in error, in his contention that the case must fall unless proof that the servant, Hayes, was acting within the scope of his employment and at the master's command is 'clear and convincing to carry the burden of proof', cites Spaulding v. Mayes, 48 Ga.App. 613, 616, 172 S.E. 734; Jordan v. Thompson, 58 Ga.App. 199, 198 S.E. 302, and other cases having to do with rulings on demurrer, alleged errors in the charge of the court, and the like, where the rules regarding the construction of pleadings and evidence are...
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...(Emphasis supplied.) Montgomery Trucking Co. v. Black, 231 Ga. 211, 213, 200 S.E.2d 882 (1973), quoting Ellison v. Evans, 85 Ga.App. 292, 296, 69 S.E.2d 94 (1952). Here, the evidence is undisputed that Carroll did not request any specific driver when it hired the truck at issue from Griffin......
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...of these facts to authorize the opinion given by the witness was a matter to be determined by the jury...'." Ellison v. Evans, 85 Ga.App. 292, 297, 69 S.E.2d 94. Evidence of the force of impact of collision of a car, or the distance the auto traveled from the point of impact may of itself, ......
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Whidby v. Columbine Carrier, Inc.
...it appears that he believes it to be substantially correct, the credit to be given such testimony [is] for the jury." Id; Ellison v. Evans, 85 Ga.App. 292, 69 S.E.2d 94. A lay person has been permitted to offer an opinion as to speed even though it was "a mere guess," based upon "(the) way ......
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