Finley v. Griswold
Decision Date | 13 April 1979 |
Docket Number | No. 57322,57322 |
Citation | 255 S.E.2d 87,149 Ga.App. 612 |
Parties | FINLEY et al. v. GRISWOLD. |
Court | Georgia Court of Appeals |
Bussey & Thomas, Antonio L. Thomas, Atlanta, for appellants.
Webb, Fowler & Tanner, W. Howard Fowler, J. Larry Edmondson, Lawrenceville, for appellee.
The plaintiffs, Mr. and Mrs. Finley, appeal from a jury verdict for the defendant. Plaintiffs' automobile, being driven by Mrs. Finley, was struck in the rear by defendant's automobile. She alleges she suffered disabling injuries, and incurred medical and hospital bills, loss of wages, damages to her car, pain and mental anguish, and will require "medication for an unforseeable period" in the future. Her husband sued for loss of "consortium and services." Both parties were insured by Allstate. The complaint alleged medical expenses of $1,788.08. Allstate paid plaintiffs $1,719.28. The complaint alleged damages to the car of $427 and $105 for loss of use. Allstate paid $434.27 for damages to the car and $72.80 for loss of use. The complaint alleged lost wages to be $1,626.20. Allstate paid plaintiff $980.04. The jury found for the defendant and plaintiffs bring this appeal. Held :
1. Plaintiffs contend the trial court erred in denying their motion for directed verdict and motion for judgment notwithstanding the verdict. We do not agree. Mrs. Finley testified that she made a left turn off Stewart Avenue onto Cleveland and was then hit from the rear by Mrs. Griswold. She walked across the street and called the police and waited with Mrs. Griswold until the police arrived. She stated that she told the police officer she was injured and would go to the hospital to get a check-up. She drove her car to the hospital after the investigation was completed. She estimated her speed at the time of impact at "ten to fifteen miles an hour." She had estimated her speed in a prior deposition at twenty-five to thirty m. p. h. She estimated Mrs. Griswold's speed at "thirty to thirty-five miles an hour." On cross examination she was asked:
Contrary to the plaintiff's testimony the defendant testified: " " " It looked like she (the plaintiff) was stopping, I did not see her brake lights, but I could tell the traffic had stopped, and I hit my brakes and started to try to turn to the right to keep from hitting her. " Mrs. Griswold stated that the force of the impact "was light. " It did not "jar . . . or hurt (her) in anyway."
The plaintiff's and defendant's version of the incident were clearly in conflict. Plaintiff said the traffic was "immediately" in front of her and then stated it was not. She said that the traffic had not stopped. The defendant stated the traffic had stopped and Mrs. Finley's car showed no brake light. Plaintiff estimated defendant's car speed at 30 or 35 m. p. h. although she also testified she had not seen her prior to the incident. She estimated her speed at 10 to 15 m. p. h. at one time and 25 to 30 m. p. h. at an earlier time.
Where the evidence is in conflict in a rear-end collision case it is not error to deny a directed verdict or judgment n. o. v. O'Neil v. Moore, 118 Ga.App. 424(3), 164 S.E.2d 328; Atlanta Coca-Cola Bottling Co. v. Jones, 236 Ga. 448, 224 S.E.2d 25.
2. The investigating police officer did not respond to a subpoena and plaintiff requested a continuance. The court inquired: "Well, is there anything ah, I presume he is going to testify about his investigation is there anything ah, material that he...
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