Hutchinson v. Tillman
| Decision Date | 07 January 1975 |
| Docket Number | No. 3,No. 49750,49750,3 |
| Citation | 211 S.E.2d 912,133 Ga.App. 660 |
| Parties | Peter HUTCHISON et al. v. Joseph M. TILLMAN et al |
| Court | Georgia Court of Appeals |
Fending, Dickey, Fending & Whelchel, Donald B. Napier, J. Thomas Whelchel, Brunswick, for appellants.
Taylor, Bishop & Lee, James A. Bishop, Brunswick, for appellees.
Syllabus Opinion by the Court.
On July 6, 1970, at approximately 3:30 p.m., a collision occurred between a Volkswagen automobile and a pulpwood truck in Glynn County, Georgia. The Volkswagen was owned by Charles Tillman and driven by Joseph Marvin Tillman, his 16 year-old son. The pulpwood truck was owned by Peter Hutchinson, and was driven by Frankie Lee Wilson, his agent and servant while in the scope of the master's business. The pulpwood truck was traveling south on Georgia Highway No. 303; and was headed in the direction of its intersection with Blythe Island Drive. The Volkswagen was on Blythe Island Drive and was traveling east towards its intersection with Highway 303.
Both Charles Tillman and Joseph Marvin Tillman, as plaintiffs, sued Peter Hutchinson and Frankie Lee Wilson, as defendants, and a verdict was rendered for plaintiffs. Joint motions for judgment notwithstanding the verdict were filed, and in the alternative, defendants sought a new trial. These motions were denied. Defendants appeal. Held:
1. In arguing enumerations of error 1 through 6, defendants contend that the evidence demanded a verdict for defendants, and the court erred in failing to direct the verdict, in failing to grant the motion for judgment notwithstanding the verdict, and in failing to grant the motion for new trial. There was evidence which showed that the Volkswagen stopped at the intersection, and then proceeded into same, and crossed one lane of traffic (the southbound lane in which lane the pulpowood truck approached the intersection), and then drove across to the other lane of traffic (the northbound lane), and that the pulpwood truck left the southbound lane of traffic and drove across the center line and into the northbound lane of traffic, where it was to its left of the center-line, and there it struck the Volkswagen. The pulpwood truck was traveling from 40 to 45 miles per hour as it approached the intersection, and laid down 72 feet of skid marks before impact, and came to rest an additional 120 feet from the point of impact. The Volkswagen was knocked 74 feet backward by the force of the collision. The evidence did not show how fast the Volkswagen was traveling, but as it had stopped at the stop sign, and traveled thereafter less than the width of two lanes of traffic, it could be assumed that it was running at only a fraction of the speed of the truck. Further, as the Volkswagen's speed was slower than the pulpwood truck's speed, and as it negotiated about three-fourths of the breadth of the intersection before being struck, it could have been concluded by the jury that the Volkswagen entered the intersection before the pulpwood truck entered same. There was no testimony to suggest that the pulpwood truck reduced speed on the approach to an intersection as is required by Code Ann. § 68-1626(c) (). And of course, one who violates the law must anticipate that all others may violate the law. Ga. Power Co. v. Blum, 80 Ga.App. 618(3-b), 57 S.E.2d 18; Williams v. Grier, 196 Ga. 327, 338, 26 S.E.2d 698. No principle is better established than the right and duty of a jury to determine all questions relating to negligence. Long Construction Co. v. Ryals, 102 Ga.App. 66(1), 115 S.E.2d 726; Hanchey v. Hart, 120 Ga.App. 677, 171 S.E.2d 918; Wakefield v. A. R. Winter Co., Inc., 121 Ga.App. 259, 174 S.E.2d 178. And the evidence must be construed most favorably toward the party who prevailed in the trial court; if there is any evidence to support the verdict it must be affirmed. See Bell Bros. v. Aiken, 1 Ga.App. 36(2), 57 S.E. 1001; Alabama Great Sou. R. Co. v. Brock, 141 Ga. 840(2), 82 S.E. 225; Crews v. Crews, 219 Ga. 459, 463(1), 134 S.E.2d 27; City of Dublin v. Hobbs, 218 Ga. 108(2), 126 S.E.2d 655. The jury could have concluded that the pulpwood truck's driver was negligent in driving across the center line and colliding with the Volkswagen while on its left-hand side of the center of the highway. Code Ann. § 68-1633 ().
2. Defendants enumerate error because of certain language charged by the trial judge to the jury. They not only take same out of context, but omit part of the sentence, which omitted part completely changes the meaning of the language charged. See Brown v. Matthews, 79 Ga. 1(1), 4 S.E. 13, as to trying to show error by disjointed fragments of the charge. We set forth next the language complained of, and we are adding and emphasizing the omitted part of the sentence, to wit: 'I charge you, however, that if you find that defendant Wilson was negligent, and that such negligence proximately caused or contributed to such plaintiffs' injury and damage, if any, you would be entitled to return a verdict in favor of such plaintiff unless you should find that a recovery in favor of him should be denied under other instructions given you in this charge.' (Tr. p. 113) Elsewhere where the trial judge charged the jury that plaintiffs could not recover if their conduct caused the occurrence complained of; nor if plaintiffs could have by exercise of ordinary care avoided consequences of the defendants' negligence; and if plaintiffs' negligence was equal to or exceeded the negligence of defendants, plaintiffs could not recover. (Tr. p. 111).
The trial judge, in effect, instructed the jury not to consider excerpts from his charge out of context, but to consider same in relation to the entire charge. There is no error shown in this enumeration.
3. Defendant complains because the trial court charged the general speed restriction statute, requiring driving at a reasonable and prudent speed and requiring the control of speed as may be necessary to avoid colliding with a vehicle on or entering the highway in compliance with legal requirements. Defendant contends that the above charge is not adjusted to the evidence. We have previously set out evidence which the jury was authorized to believe, including defendants' approach to an intersection at 40 to 45 miles per hour, without reducing speed as required by statute; that the Volkswagen entered...
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...is a correct statement of the law, it should not have been read because it is argumentative in nature. They cite Hutchinson v. Tillman, 133 Ga.App. 660, 211 S.E.2d 912 (1975). It is true that " '[w]here the charge of the court is argumentative and so strongly states the contentions of one o......
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...course, one who violates the law must anticipate that all others may violate the law. (Citations omitted.)' Hutchinson v. Tillman, 133 Ga.App. 660, 661, 211 S.E.2d 912, 915 (1975). Clearly Johnson failed to exercise the necessary ordinary care to avoid the consequences to himself caused by ......
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