Garner v. Driver
| Decision Date | 02 September 1980 |
| Docket Number | No. 59149,59149 |
| Citation | 155 Ga.App. 322,270 S.E.2d 863 |
| Parties | GARNER v. DRIVER. |
| Court | Georgia Court of Appeals |
Albert B. Wallace, Jonesboro, for appellant.
Glenn Frick, Atlanta, for appellee.
On Wednesday morning, July 13, 1977, at or about 9:30 a.m., a collision of automobiles occurred on Thurmond Road in DeKalb County, Georgia, located in the extreme southwest corner thereof. Thurmond Road at this point is a two-lane blacktop road running generally east and west. The collision involved a 1973 GMC pickup truck, driven by William Parker Driver, and a 1976 Chevrolet Nova sedan automobile, driven by Ples David Garner. A Georgia Power Company work crew was working in the vicinity at or near where the two vehicles collided. There was a double yellow line down the road at this particular point. Both drivers were injured and Mr. Driver's injuries were fatal although he did not die at the scene of the collision.
Thereafter, Ples David Garner, as plaintiff, sued Mrs. Effie Driver, as Executrix under the will of William Parker Driver, deceased, seeking damages for personal injury, substantial medical expenses and fair market value of plaintiff's automobile, said damages proximately resulting from the negligence of defendant's decedent, in failing to drive upon the right half of the roadway and driving at a speed greater than was reasonable and prudent under the conditions, both being negligence per se; in failing to keep a proper lookout ahead to avoid colliding with the plaintiff, and directing his truck from the westerly portion of the roadway onto the easterly portion thereof and colliding with plaintiff's vehicle. Plaintiff prayed for $150,000 in damages from the estate of the decedent.
The defendant answered, admitting jurisdiction and qualification as executrix of the estate; and that her decedent died as a result of the head-on collision. She admitted that Thurmond Road at this point is a paved two-lane road, each lane of equal width, on which plaintiff was driving in a northerly direction at approximately 9:50 a m. on the date in question in an unincorporated area of DeKalb County; but otherwise denied the allegations of negligence of the decedent, and the claim for damages. Defendant further contends that on that date the roadway was partially obstructed by markers and equipment of Georgia Power Company and Southern Bell Telephone & Telegraph Company.
The case proceeded to trial resulting in a verdict and judgment in favor of the defendant. A motion for new trial was then filed and denied, and plaintiff appeals. Held :
1. The defendant's decedent was killed or died as a result of the collision, and the defendant offered no testimony. The plaintiff testified that he was on the right side of the road traveling east and not over the center line when the decedent's car left the lane in which it was traveling west, came over the center line and the two automobiles collided in plaintiff's lane of traffic. He then proceeded to describe the injuries he suffered as a result of the collision. The only other witness was a DeKalb County policeman who testified as to the location of the vehicles when he arrived at the scene and the debris found more or less "strewn all over the road." The Chevrolet automobile (plaintiff's) was half on the roadway and the other half on the shoulder. The pickup truck (defendant's decedent's) had turned in a counterclockwise position and was facing the other lane straddling the lane. From the location of the Georgia Power Company truck, having several traffic cones two feet off the shoulder "on the roadway," the officer witness was of the opinion that it was impossible for the decedent to go around the cones without going into the other lane; that it appeared to him that the driver attempted to do so and the collision occurred. He was unable to testify as to the speed of either vehicle. He testified that the entire front end of the Chevrolet Nova automobile was damaged and the GMC truck was damaged in the front end but more on the driver's corner at an angle, that is, the left hand side of the vehicle. He testified also that in his opinion the collision occurred just inside of the double yellow line in the plaintiff's lane; that in his opinion it was impossible to go around the cones without going into the other lane and the vehicles had collided by reason of the debris which was "strewn all over the road." On cross examination this witness conceded that the debris location could be just as consistent with both vehicles being over the center line as it is with just one of the vehicles being over the center line.
The first alleged errors argued by the plaintiff are with reference to a charge on the law of comparative negligence and plaintiff's contention that the trial court erred in denying his motion for directed verdict as to liability. Plaintiff contends that the trial court erred in charging on comparative negligence since the defendant offered no testimony, and the negligence of the decedent was clearly demonstrated by the testimony of the police officer and the plaintiff, there was no inference of negligence on the part of the plaintiff, and the jury in no way could have made a determination of some negligence on the part of the plaintiff in that the defendant's decedent had turned across the center line and collided with the plaintiff. Plaintiff contends he at no time was able to turn aside, put on the brakes, or do anything else to lessen the impact. However, counsel for plaintiff concedes that the jury would have the right to reject the opinion of the police officer who gave his opinion after noting the position of the automobiles and debris as well as the location of the Georgia Power Company work crew with cones approximately two feet from the shoulder on the paved portion of the road. Plaintiff argues that it is error to charge on contributory negligence or comparative negligence where there is no evidence of such negligence, citing such cases as Davis v. Laird, 108 Ga.App. 729, 733-734, 134 S.E.2d 467; Hardwick v. Ga. Power Co., 100 Ga.App. 38 (5), 110 S.E.2d 24; Parks v. Fuller, 100 Ga.App. 463 (2), 111 S.E.2d 755; Earl v. Edwards, 117 Ga.App. 559 (1, 2), 161 S.E.2d 438. He contends further that neither the pleadings nor the evidence discloses the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's decedent's negligence and that the plaintiff in no way contributed to the injuries sustained, citing White v. Woods, 135 Ga.App. 618, 218 S.E.2d 322. We deal with both of these contentions together in this division.
Generally in tort actions questions as to negligence, including contributory and comparative negligence, as to what and whose negligence was the proximate or contributing cause of the injury, are all for jury determination, that is, if there be any evidence to support them. See Boatright v. Rich's, Inc., 121 Ga.App. 121, 122 (2), 173 S.Ed.2d 232; Poss v. Carlton Co., 122 Ga.App. 528, 530, 177 S.E.2d 829. However, the jury was not bound by the opinion testimony of the investigating police officer but was authorized to consider his testimony as to the relevant facts as disclosed by his investigation and make its own interpretation. Under Code § 38-102 the jury as the trier of facts could have drawn inferences from human experience in connection with cause and effect and applied its own opinion from the fact evidence submitted. See in this connection Tifton Corp. v. Decatur Federal Savings &c. Assn., 136 Ga.App. 710, 712 (3), 222 S.E.2d 115; American Oil Co. v. Floyd, 136 Ga.App. 804, 805 (3), 222 S.E.2d 208; American Service Co. v. Green, 146 Ga.App. 552, 554, 246 S.E.2d 735. Based upon the entire evidence before the court, the trial court did not err in charging on comparative negligence. Davis v. Hammock, 123 Ga.App. 33, 36, 179 S.E.2d 283; Poss v. Carlton Co., 122 Ga.App. 528, 530, 177 S.E.2d 829, supra.
The evidence did not demand a judgment in favor of the plaintiff so as to require direction of a verdict as to liability. All enumerations of error involving these issues are not meritorious. See Humble Oil &c. Co. v. Mitchell, 230 Ga. 323, 326, 197 S.E.2d 126; Ga....
To continue reading
Request your trial
-
Johnson v. Bryant, s. 71283
... ... See generally Foist v. Atlanta Big Boy Mgt., 166 Ga.App. 304, 306, 304 S.E.2d 111; Garner v. Driver, 155 Ga.App. 322, 325, 270 S.E.2d ... 863. The trial court did not abuse its discretion in overruling plaintiffs' motions for new trial ... ...
-
Adamson Co. v. Owens-Illinois Development Corp.
...the connection of cause and effect and observations of human conduct. See OCGA § 24-1-1 (formerly Code § 38-102). Garner v. Driver, 155 Ga.App. 322, 324, 270 S.E.2d 863; Sentry Ins. v. Henderson, 138 Ga.App. 495, 498(6), 226 S.E.2d 759; Jones v. State, 139 Ga.App. 366, 367(4), 228 S.E.2d 38......
-
Harrison v. Ellis
...cause is for the jury to decide. 1 DeKalb County Hosp. Auth. v. Theofanidis, 157 Ga.App. 811, 278 S.E.2d 712 (1981); Garner v. Driver, 155 Ga.App. 322, 270 S.E.2d 863 (1980). I would affirm the trial court on the sole basis that the evidence authorized the I am authorized to state that Judg......
-
Sims v. Johnson, 75418
...of the case ... was [not] cause for a new trial." Courson v. Pearson, 132 Ga. 698(2), 64 S.E. 997 (1909). Accord Garner v. Driver, 155 Ga.App. 322(2), 270 S.E.2d 863 (1980); Evans v. DeKalb County Hosp. Auth., 154 Ga.App. 17(3), 267 S.E.2d 319 (1980); see also Whitley v. Wilson, 90 Ga.App. ......