Georgia Highway Express v. Sturkie

• Citation: 9 S.E.2d 683,62 Ga.App. 741
• Decision Date: 24 May 1940
• Docket Number: 28286.
• Parties: GEORGIA HIGHWAY EXPRESS, Inc., et al. v. STURKIE.
• Court: United States Court of Appeals (Georgia)

9 S.E.2d 683

62 Ga.App. 741

GEORGIA HIGHWAY EXPRESS, Inc., et al. v. STURKIE.

No. 28286.

Court of Appeals of Georgia, Division No. 2.

May 24, 1940

Rehearing Denied June 29, 1940.

Syllabus by the Court.

Winsor Letton and Wm. A. Mitchell, Jr., both of Atlanta, for plaintiffs in error.

G Eugene Ivey and Irving S. Nathan, both of Atlanta, for defendant in error.

SUTTON Judge.

M. C Sturkie brought suit against Georgia Highway Express, Inc., and its insurance carrier, the American Fidelity & Casualty Company, to recover damages in the sum of $575 which he alleged he sustained by reason of the negligence of the express company's driver of one of its trucks; that on October 15, 1939, the plaintiff parked his automobile a few feet to the west side of the Atlanta-Fairburn highway, and that the express company's truck, which was proceeding south on said highway towards Fairburn, ran off of the highway to the right and struck plaintiff's parked car, and that his damage was caused by such impact and the negligence of the driver in not having the truck under control. The defendants filed an answer denying liability, and filed a cross bill for damages, alleging that the collision was caused by the plaintiff's car being parked on a slope without proper braking facilities and rolling into the highway, unattended and without lights, so suddenly that the driver of the truck could not avoid the collision. The jury returned a verdict for the plaintiff for $460, and the exception here is to the judgment overruling the defendants' motion for new trial.

The plaintiff testified that he operated a filling station, where he sold gasoline, oil, sandwiches, soft drinks, tires and tubes, on the right or west side of the highway about 6 miles beyond College Park on the Atlanta-Fairburn highway; that two gasoline pumps were placed 12 or 14 feet from the highway, resting on a cement apron 40 to 50 feet long and about 15 feet wide; that in front of the station was a slight grade towards Fairburn; that shortly before 1 o'clock on the night of the collision he drove his automobile in front of the station and parked it next to the pumps, facing south towards Fairburn, and the left side being a few feet from the paved road, the lights being left burning; that the brakes of the car were in good condition and had been repaired and relined about three weeks previously at a garage in Fairburn and had been checked since that time; that the emergency hand brake was pulled up and the motor was stopped, and that he had had no trouble as to the brakes coming off during the previous ninety days; that the car was a 1937 Buick sedan, a good used car and cost about $590; that after parking the car he immediately went inside the small station building to turn out the lights and lock the door, and while inside heard a crash, ran to the door, and looking down the highway saw his car and the defendant's truck going over an embankment on the right side of the highway about 50 to 75 steps from the south side of the cement apron, the defendant's truck being right behind the plaintiff's car; that he then went to the cars, and shortly after arriving the driver of the truck crawled out of it, and, upon plaintiff's inquiry as to whether he was hurt, answered that he was "stunned" a little; that upon being asked by the plaintiff why he had torn up the plaintiff's car he answered that he didn't know, that "it just happened;" that he was very peaceful and did not say anything as to the plaintiff's car rolling out into the highway, hitting the truck, or running down in front of it; that the defendant had refused to pay him for the damage done to his car.

M. R. Tarpley testified that he repaired automobiles and sold used cars at Fairburn; that about September 18, 1939, he relined the brakes on all four wheels and overhauled the master cylinder of plaintiff's car, and on October 6 thereafter personally supervised an adjustment of the brakes and found them in good condition, including the hand brake, and that the brakes would hold on any kind of an incline on a paved road; that he was a fair judge of used cars, and that in his opinion the value of the car before the accident was $550 and afterwards $65.

Gus Walker testified that on the night of the collision, about 1 o'clock, he was driving from Atlanta and passed the defendant's truck 2 or 3 miles before reaching the plaintiff's filling station, saw an automobile parked in front of the station off of the highway and headed towards Fairburn, and saw there a boy who worked at the station.

Jim Pritchett testified that he was on duty at the station on the night of the collision and went in the building just ahead of the plaintiff and heard the crash; that he was sure the rear lights of the plaintiff's car were left on when it was parked because he saw them; that he went to the cars after the collision. He corroborated the plaintiff as to what was there found and done, and what was said between the plaintiff and the driver of the defendant's truck.

J. W. Trout, who operated a garage, testified that the plaintiff's car, a 1937 Buick sedan, was then in his place of business; that he had been dealing in used cars 15 or 16 years, and that the plaintiff's car was then worth about $75.

W. H Wilson testified for the defendant that he was driving the defendant's truck, a Mack tractor and trailer, running about 35 to 37 miles an hour as he approached the plaintiff's station, where the lights were burning inside but not outside; that just as he went over a hill and downgrade the plaintiff's car rolled into the highway in front of him; that he slowed down, blew his horn, and started by the car and pulled to the left; that the car kept coming towards him, and the left front of it hit the right front of the tractor, and that wheeled the car around in the road, and the back of the car was thrown into the tractor, striking it with its left rear, and causing him to lose control, and both cars left the road; that the point of collision was about 25 steps or approximately 50 feet towards Fairburn from the south edge of the concrete apron; that there were no lights on the plaintiff's car when it struck the tractor and it was approximately in the center of the road at the time of impact; that it angled into the road and nobody was in it; that after the collision he told the plaintiff he was just stunned a bit and did not talk about the circumstances surrounding the accident; that he asked the first person that came along to call the police and stayed with the wreck until the police came, and the plaintiff did not stay but gave his address, and the witness gave his and showed the plaintiff his driver's license and told him where the company offices were; that the tractor was completely demolished and not worth fixing but the trailer was unhurt; that there was no traffic on the road that night or any in sight; that he had been working that day only since ten minutes before twelve, had been driving for the company about seven years, had no portion of the tractor or trailer off of the highway; that he was about 50 feet up the road when he saw the plaintiff's car ease out ahead of him; that he did not have time to stop his unit from the time he first saw the plaintiff's car and started by it, but might have reduced the speed 10 miles an hour; that the plaintiff's car entered the highway about 10 feet south of the pumps and angled across the road generally towards Fairburn; that the witness did not go to sleep and run off the highway and hit the plaintiff's car; that the car entered the highway when the witness was about 35 to 40 feet from the station and he slowed down about 3 miles an hour after he saw it,...