Humphreys v. Kipfmiller
| Decision Date | 08 April 1999 |
| Docket Number | No. A99A0690.,A99A0690. |
| Citation | 237 Ga. App. 572,515 S.E.2d 878 |
| Parties | HUMPHREYS v. KIPFMILLER. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Wall & Noonan, Douglas T. Noonan, Patrick J. Gibbs, Roswell, for appellant.
Downey & Cleveland, Russell B. Davis, Marietta, for appellee.
Lisa Humphreys sued Jason Kipfmiller for injuries she allegedly sustained in an automobile collision. The case was tried before a jury and a verdict returned in favor of defendant Kipfmiller. Humphreys filed motions for judgment notwithstanding the verdict and new trial, which the trial court denied. Humphreys appeals. For the reasons set out below, we affirm.
1. This Court has consistently held that a motion for j.n.o.v. may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. Where there is conflicting evidence, or there is insufficient evidence to make it clear that only one judgment would be proper, j.n.o.v. should not be awarded. In considering the motion, both the trial court and the appellate court must view the evidence in the light most favorable to the party who secured the jury verdict. See U.S. Fidelity &c. Co. v. Paul Assoc., 230 Ga.App. 243, 250(6)(b), 496 S.E.2d 283 (1998). Applying this standard of review, we find the trial court did not err in denying Humphreys' motion for j.n.o.v.
Construing the evidence in the light most favorable to Kipfmiller, the record shows that Humphreys was a passenger in a car driven by Henry Paulson. Paulson was traveling on a through street, and Kipfmiller was traveling on a side street controlled by a stop sign, approaching its intersection with the through street. The collision occurred when Kipfmiller, having first stopped at the stop sign, turned left onto the through street and into the path of Paulson's car.
While Humphreys alleged the collision was solely due to Kipfmiller's negligence, there was at least some evidence supporting Kipfmiller's position that he acted with due care and was not negligent. Kipfmiller testified that he stopped at the stop sign and proceeded into the intersection only after looking twice for oncoming traffic and determining the intersection was clear. Although Kipfmiller testified that he had been driving all night, he also stated, contrary to Humphreys' allegation, that at the time of the collision he did not feel fatigued.
There was sufficient conflict in the evidence as to causation to warrant sending the issue to the jury. Kipfmiller testified that the cars connected "hard and strong." Paulson testified that the impact was so strong that it literally knocked the front two wheels of Kipfmiller's vehicle out and flat on the ground. He further testified that, even though Humphreys wore a seat belt in the back seat, she hit the back window. While Paulson testified that he was traveling only 25 mph, he also testified that he last looked at his speedometer when he turned onto the through street and started up a hill some distance away from the intersection.
Since there was evidence Kipfmiller pulled into the intersection after stopping, the force of the impact creates an allowable inference that Paulson's vehicle was moving at a fairly high rate of speed. While the photographs in the record show little damage to the vehicles and are consistent with Paulson's assertion that he was not speeding at the time of the collision, the jury, nevertheless, could have found, based on the testimony of the two drivers that they did not see each other until immediately prior to the collision, as well as their testimony regarding damage to their vehicles, that Paulson was speeding and that the speed of Paulson's vehicle was the sole proximate cause of the collision. The jury could also have concluded that Kipfmiller complied with OCGA § 40-6-72(b), momentarily gaining the right of way to enter the intersection, and that Paulson's speed was the proximate cause of the collision. See Flournoy v. Brown, 226 Ga.App. 857(1), 487 S.E.2d 683 (1997).
We disagree with Humphreys' argument that she, as a guest passenger, was entitled to j.n.o.v. because the evidence demanded a finding that Kipfmiller was solely or at least partially responsible for the collision. Unlike Moore v. TCI Cablevision, 235 Ga.App. 796, 510 S.E.2d 96 (1998), where we reversed a jury verdict for the defendants in a suit brought by the guest passenger, Humphreys sued only one driver in this case. Here, the jury had three options: (1) it could have concluded that both drivers violated the law and the negligence of each driver was a contributing proximate cause of the collision; (2) it could have concluded that Kipfmiller breached his duty under the law and was the sole proximate cause of the collision; or (3) it could have concluded that Kipfmiller did not breach his duty under the law and that Paulson's speed was the sole proximate cause of the collision. While the evidence supporting the last option was not overwhelming, there was evidence to support the jury's conclusion that Paulson's negligence was the sole proximate cause of the collision. Except in plain, palpable and indisputable cases, all questions of negligence, contributory negligence, cause and proximate cause, and whose negligence constituted proximate cause of an injury are for the jury. And, on appeal the evidence is to be construed to sustain, rather than destroy, the verdict, for every presumption and inference is in its favor. See Roberts v. Dove, 234 Ga.App. 853, 854(1), 508 S.E.2d 213 (1998). Under the standard of review which applies in this case, the evidence was sufficient to justify the trial court's denial of Humphreys' motion for j.n.o.v.
2. Humphreys alleges the trial court erred by denying her motion for new trial. This motion was based on the claim that the trial court erred in giving the following charge to the jury: "I further charge you that the Defendant has no duty to yield the right of way if you find that the Defendant, after stopping and looking, could not see the automobile in which the Plaintiff was riding as the Defendant entered the roadway."
This charge was adopted in Simpson v. Reed, 186 Ga.App. 297, 367 S.E.2d 563 (1988), overruled on other grounds, Robinson v. Star Gas of Hawkinsville, 269 Ga. 102, 103-104(1), 498 S.E.2d 524 (1998). Humphreys argues that the trial court erred in giving this charge because the Simpson case involves OCGA § 40-6-73 and the present case deals with OCGA § 40-6-72. We disagree.
OCGA § 40-6-72 mandates that a driver approaching a stop sign must, after stopping, yield the right of way to any vehicle in the intersection or approaching on another roadway so closely as to constitute an immediate hazard during the time when such driver is moving across or within the intersection or junction of roadways. OCGA § 40-6-73 mandates that a driver of a vehicle about to enter or cross a roadway from any place other than another roadway shall yield the right of way to all vehicles approaching on the roadway to be entered or crossed. In Simpson, as in this case, the trial court merely gave the limiting instruction to explain the extent of the duty imposed upon a driver before entering a roadway. Just as the charge in Simpson explained why the duty created by OCGA § 40-6-73 might not have been breached under the facts in that case, the charge given by the trial court here explained why the duty created by OCGA § 40-6-72 might not have been breached under the evidence in this case. Both statutes impose a duty upon drivers who are about to enter a roadway; the charge is merely an attempt to instruct jurors to use their common sense in determining whether the driver satisfied the duty required by the statute. It would be illogical to allow a driver entering a roadway from a private drive to proceed in spite of a car that is not visible but not allow a driver who stopped at a stop sign to proceed under the same circumstances.
In discussing the extent of the duty required by OCGA § 40-6-72, we have previously held:
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