Glaze v. Bailey, s. 48543

• Decision Date: 07 November 1973
• Docket Number: 48544,Nos. 48543,No. 2,s. 48543,2
• Citation: 202 S.E.2d 708,130 Ga.App. 189
• Parties: George E. GLAZE v. Joyce BAILEY. G. E. GLAZE, Admr. v. M. L. BAILEY
• Court: Georgia Court of Appeals

Page 708

202 S.E.2d 708

130 Ga.App. 189

George E. GLAZE v. Joyce BAILEY.

G. E. GLAZE, Admr. v. M. L. BAILEY.

Nos. 48543, 48544.

Court of Appeals of Georgia, Division No. 2.

Nov. 7, 1973.

Dunaway, Shelfer, Haas & Newberry, William S. Shelfer, Jr., Atlanta, for appellant.

Hayes & Hayes, Mose S. Hayes, Jr., Atlanta, for appellees.

Syllabus Opinion by the Court

EVANS, Judge.

Eddie Roy McEwen drove his automobile into the rear of an automobile operated by Mrs. Joyce Bailey, while she was stopped in a line of traffic on an interstate highway, inflicting damages and personal injuries. Mrs. Bailey sued McEwen because of his alleged negligence; and her husband, Mack L. Bailey, sued McEwen for loss of consortium of his wife and for medical expenses incurred as a result of the collision.

Defendant answered, denying the material allegations of each complaint. Thereafter, during the pendency of the litigation, defendant died, and G. E. Glaze, as administrator of his estate, was substituted for the original defendant. The cases were consolidated for trial; and after hearing evidence, the court directed a verdict against the defendant as to liability in each case. Verdicts were then returned by the jury in favor of the plaintiffs, and judgments entered in accordance thereto. Defendant appeals. Held:

1. The evidence showed that the automobile driven by plaintiff was stopped in a line of traffic on an interstate highway when the automobile driven by defendant struck it in the rear with sufficient force to move her automobile while its brakes were on, causing it to strike another automobile six feet in front of her. She never did see the defendant, as she was rendered unconscious by the impact. The parties stipulated that her car was struck in the rear by defendant's car. A police officer testified that he had a conversation with defendant at the scene approximately 10-15 minutes after receiving the call to investigate the collision; that defendant told him, 'he was driving approximately forty miles per hour, and he didn't give a reason for not being able to stop before he hit the vehicle . . .' This testimony was allowed as a part of the res gestae, over defendant's objection. There was ample proof of the damage incurred.

The evidence was sufficient to support the verdict. The court did not err in refusing to direct a verdict in favor of the defendant. All enumerations involving the sufficiency of the evidence are not meritorious.

2. Did the evidence demand a verdict in favor of the plaintiff as to liability? The jury must consider whether defendant failed to exercise ordinary care in driving his automobile in the manner of an ordinarily prudent person at the time of the collision. Generally, it is a jury question as to which party is at fault when a plaintiff is hit in the rear by defendant and when both are driving on the highways and streets. See Code Ann. §§ 68-1626(a), (c), 68-1641 (Ga.L.1953, Nov. Sess., pp. 556, 577, 585; 1959, p. 303; 1961, pp. 438, 439; 1963, p. 26; 1964, pp. 294, 295; 1965, p. 322; 1968, p. 987; 1968, p. 1158; 1968, pp. 1427, 1428, 1429; 1972, p. 951). But here, plaintiff's testimony shows she was completely stopped and could not move because of the traffic, when she was hit in the rear by the defendant. Unfortunately, defendant's death precluded his testifying. The testimony of the officer as to his admission against interest suggests that the deceased violated Code Ann. §§ 68-1626(a), (c), 68-1641, supra, with a complete absence of testimony to rebut plaintiff's prima face showing as to his negligence per se. There are many cases of rear-end collisions, but it appears that the cases of Pike v. Stafford, 111 Ga.App. 349, 141 S.E.2d 780; Sutherland's Eggs, Inc. v. Barber, 116 Ga.App. 393, 157 S.E.2d 491; and Rosenfeld v. Young, 117 Ga.App. 35, 159 S.E.2d 447, more nearly fit the situation here than O'Neil v. Moore, 118 Ga.App. 424, 429, 164 S.E.2d 328, or Thomason v. Willingham, 118 Ga.App. 821, 822(1), 165 S.E.2d 865. Plaintiff's evidence shows she was completely free of negligence, and does not show a permissible inference that she was negligent or may have contributed to the cause of the collision. Poss v. Carlton Company, 122 Ga.App. 528, 177 S.E.2d 829, differs on its facts from this case. Generally, as stated in Hay v. Carter, 94 Ga.App. 382, 94 S.E.2d 755, the driver of the rear vehicle is not at fault simply because his vehicle struck the vehicle ahead of him. As defendant's evidence does not show any legal reason or excuse for his failure to avoid colliding with the rear of plaintiff's automobile, the court properly directed a verdict against him as to liability. See also Johnson v. Curenton, 127 Ga.App. 687, 195 S.E.2d 279 and citations therein having similar rulings in rear-end collisions.

3. No definite period of time was proven as to how long it was after the collision before the police were called. The officer testified he talked to the defendant at the scene 10 or 15 minutes after the call. While this may not be enough to show the conversation was a part of the res gestae under Code § 38-305, the declaration was against his interest, not made with a view of pending litigation, and it was by a person since deceased. Code § 38-309. The declaration was admissible, and the court did not err in allowing this testimony in evidence. Barbre v. Scott, 75 Ga.App. 524, 43 S.E.2d 760; Handley v. Limbaugh, 224 Ga. 408, 414, 162 S.E.2d 400; Wade...