Heaton v. Smith
| Decision Date | 09 March 1970 |
| Docket Number | 2,Nos. 1,3,No. 44801,44801,s. 1 |
| Citation | 174 S.E.2d 197,121 Ga.App. 348 |
| Parties | William HEATON v. Elaine V. SMITH |
| Court | Georgia Court of Appeals |
Sharpe, Sharpe, Hartley & Newton, W. Ward Newton, Lyons, for appellant.
Billy W. Walker, McRae, Smith & Harrington, Will Ed Smith, Eastman, for appellee.
Syllabus Opinion by the Court
Plaintiff below brought an action for damages for the alleged wrongful death of her husband. Decedent was killed in an automobile accident when the car he was driving was struck in the side by defendant's, appellant's, car. The collision occurred at night on Highway No. 117, some distance outside the city limits of Lumber City, Georgia.
At the trial the evidence put forth by the plaintiff was that decedent was making a lawful left turn maneuver off of the highway, when the defendant coming from behind collided with decedent as he was negotiating his turn. The evidence was that the defendant began braking his automobile while on the right hand side of the highway; that it followed a path starting from the right hand lane, across the center line, and went on into the left hand lane where the impact occurred; that the front of defendant's car hit the left side of decedent's car. A witness who was riding in decedent's car testified that he caught a glimpse of defendant's car (he saw its headlights) just before the impact; and that in his opinion, based on having driven automobiles and having observed others being driven, the defendant was traveling 75 to 80 miles per hour.
The defendant's evidence was that he was traveling at a speed of about 55 miles per hour; that he observed the decedent's car and it appeared to be parked on the right hand side of the road; that he (defendant) blinked his lights and as he approached the decedent's car and began to overtake it, it suddenly attempted a left turn or a 'U' turn in the highway without giving any signal; and that he was unable to stop and avoid the collision. Defendant contended that decedent's death was due solely to his own negligence.
The jury found for the plaintiff and the defendant appealed from the judgment on the verdict. Held:
1. In instructing the jury on the law as to speed, the trial court charged Code Ann. § 68-1626(a) which provides in substance that a vehicle shall not be driven at a speed greater than is reasonable and prudent under the conditions and hazards, actual or potential, then existing. The trial court also charged Code Ann. § 68-1626(b)(1, 2), which provides that where there exist no conditions or hazards which require a lower speed, the maximum lawful speed is 50 miles per hour between one half hour after sunset and one half hour before sunrise, but that in any business or residence district the maximum lawful limit is 35 miles per hour.
In hearing objections on requests to charge, the defendant objected to plaintiff's request to charge regarding the 35-mile per hour speed limit in residential areas on the ground that there was no proof that the area was a residential area; that it was outside the city limits of Lumber City.
After such charge was given, the defendant excepted. The court called the jury back and recharged the jury on the subject, instructing them that it was a jury question as to whether the area where the accident took place was a residential district so as to render the 35 mile per hour limit applicable; that the physical characteristics regarding the area where the accident took place could be considered.
The defendant excepted to the recharge which permitted the jury to determine whether the area was residential and whether the 35 mile per hour limit was applicable.
The charge was erroneous and was adequately excepted to. A residential area is defined by statute. It is '(t)he territory contiguous to and including a highway not comprising a business district when the property on such highway for a distance of 300 feet or more is in the main improved with residences or residences and buildings in use for business: Provided, however, that when such territory is located outside the incorporated limits of a city or town, it is designated and marked as such by the Director of Public Safety.' Code Ann. § 68-1504(5)(b).
It is not error to give the jury the statutory definition of a 'business district' embodied in Code Ann. § 68-1504(5)(a), and then submit to them the question of whether the area where the collision occurred was or was not within a 'business district' as defined. Crosby Aeromarine, Inc. v. Hyde, 115 Ga.App. 836(3), 156 S.E.2d 106. In the present case the determination of whether the area was a 'residence ditrict' (and hence whether a lower speed limit was applicable for that reason) was left to the whole discretion of the jury without the benefit of the applicable statutory guidance. Furthermore, the evidence was undisputed that the collision occurred outside the city limits of Lumber City, meaning that the jury could not have found it to be a residential area subject to a 35-mile per hour speed limit restriction, unless there was some evidence that the area had been so designated and marked by the Director of Public Safety. There was no such evidence. With the jury having been charged that they might find the defendant to have been negligent, among other reasons, for exceeding the speed limit in a residence area and that such might be found to have been the direct and proximate cause of the decedent's death, we can not say that the erroneous charge was harmless. A new trial is required.
2. The defendant strongly contends that it was error to deny his motion he made for a directed verdict. A directed verdict may be granted 'If there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict * * *' Code Ann. § 81A-150(a) (). We have reviewed all of the evidence in the case. Merely having the strength or the weight of the evidence in one's favor is not sufficient cause for taking the case from the jury by directing a verdict. Kesler v. Kesler, 219 Ga. 592(1), 134 S.E.2d 811. A verdict must be demanded. The trial court did not err in denying the motion in this case.
3. The trial court did not err in refusing to withdraw from the consideration of the jury the allegations contained in one of the paragraphs of the complaint charging the defendant with operating a motor vehicle under the influence of intoxicating liquors. Several witnesses testified that shortly before the accident the defendant had been to a barbecue supper where several kinds of beverages were served, including alcohol. The defendant admitted his presence there but denied consuming any alcohol. One witness named Bowen testified that he saw the defendant drinking from a cup, that he did not know what was in the cup, but that 'You could tell the way he talked that he had had a drink * * * he would be in most any other manner that anybody else would that had taken a drink * * * his talking would be a little slower * * * you could just tell that William had had a drink.' The weight to be given this testimony in determining whether the defendant was driving...
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Harper v. Brown
...of a city or town, it is designated and marked as such by the Director of Public Safety.' Code Ann. § 68-1504(5)(b).' Heaton v. Smith, 121 Ga.App. 348, 174 S.E.2d 197. Where nothing in the record suggests that a reduced speed limit had in fact been effectuated at the place of the collision,......
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...the weight of the evidence may have favored plaintiff, this will not authorize direction of a verdict in its favor. Heaton v. Smith, 121 Ga.App. 348, 351, 174 S.E.2d 197; Grossman v. Glass, 136 Ga.App. 575, 577(1), 222 S.E.2d 64. The evidence of the plaintiff and defendant, both direct and ......
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...from the jury by directing a verdict. Kesler v. Kesler, 219 Ga. 592(1), 134 S.E.2d 811. A verdict must be demanded.' Heaton v. Smith, 121 Ga.App. 348(2), 174 S.E.2d 197. While the evidence authorized, it did not demand, a finding for the plaintiff on the issue of 3. As for the issue of dama......
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Grossman v. Glass, No. 51272
...the weight of evidence favored Glass, as plaintiff, this will not authorize the direction of a verdict in his favor. Heaton v. Smith, 121 Ga.App. 348, 351, 174 S.E.2d 197. 2. The second enumeration of error is without merit. While the evidence is very, very voluminous, and necessarily much ......