Hill v. Kirk

• Citation: 50 S.E.2d 785
• Decision Date: 13 November 1948
• Docket Number: No. 32180.,32180.
• Parties: HILL . v. KIRK.
• Court: United States Court of Appeals (Georgia)

50 S.E.2d 785

HILL .

v.KIRK.

No. 32180.

Court of Appeals of Georgia,

Division No. 2.

Nov. 13, 1948.

Rehearing Denied Dec. 15, 1948.

Error from Civil Court of Fulton County; Quincy O. Arnold, Judge.

Action by Herbert Kirk against Scott Hill for damages to plaintiff's automobile. Judgment for plaintiff and defendant brings error.

Affirmed.

C. G. Battle, of Atlanta, for plaintiff in error.

James L. Flemister, of Adanta, for defendant in error.

Syllabus Opinion by the Court

GARDNER, Judge.

Herbert Kirk, whom we shall call the plaintiff, sued Scott Hill, whom we shall call the defendant, for damages which the defendant did to the plaintiff's car. The case was tried before a judge of the Civil Court of Fulton County, who passed upon the law and facts, without a jury. Judgment was rendered in favor of the plaintiff against the defendant for $300.00. An amended motion for a new trial was filed, which was overruled. The petition alleged as acts of negligence that the defendant was going west on Cain Street and the plaintiff was going north on Courtland Street; that the plaintiff was passing the intersection on a go signal, or green light, and had passed beyond the center of the intersection; that the defendant, while under the influence of intoxicating liquors in violation of a State law, was operating his car and that he passed into Courtland Street in violation of a stop signal, a red light, in violation of a city ordinance, and further an violation of another city ordinance, --that is in operating his car more than 25 miles per hour, to-wit, over 35 miles per hour; and in further violation of a city ordinance that he was operating his car at a speed which would endanger the life and property of others by not driving it in a more safe and cautious manner. There was ample evidence to sustain each allegation of negligence (although the answer of the defendant and his evidence was in conflict). This was a question of fact determined against the defendant. So far as the general grounds are concerned, they have no merit.

As to the special grounds, it is urged, first, that the verdict for $300 was without evidence to support it. This is but an elaboration of the general grounds, and is without merit.

The second ground assigns error because the plaintiff was allowed to testify, over objections, that he could not tell how fast the car the defendant was driving was coming because the only thing he saw was the headlights approaching and heard the noise, but he did know that it was going well over 35 miles per hour. The objection urged was that this was a conclusion. We do not think so. It was an opinion of the witness based on his knowledge of driving cars. Moreover, there was other evidence, that is, the circumstances of the cars, their location, and other evidentiary facts testified to by the traffic officers of the city who observed the scene and the position of the cars that would substantiate the fact that the car was being operated so far as speed was concerned, in violation of the city ordinance. This ground has no merit.

The third special ground is based on the contention that the court erroneously, over objections, permitted the plaintiff to testify that he did not know exactly what the damage done to his car was, that he had a mechanic present who would testify as to that but that he could, and the court...