Johnson v. Curenton

Decision Date01 December 1972
Docket NumberNo. 47623,No. 3,47623,3
Citation127 Ga.App. 687,195 S.E.2d 279
CourtGeorgia Court of Appeals
PartiesLucille R. JOHNSON v. Mattie M. CURENTON

Syllabus by the Court

1. Where the testimony discloses plaintiff is completely free of negligence and defendant's evidence shows no legal reason or excuse for failure to avoid running into the rear of the automobile in which plaintiff was riding as a passenger, the trial judge did not err in directing a limited verdict for the plaintiff on the question of liability and leaving to the jury the fixing of damages, if any, recoverable by plaintiff.

2. Upon a motion for a directed verdict the general rule applies that the testimony of a party litigant which is contradictory, vague, inconclusive, and ambiguous must be construed most strongly against such litigant when that party is the sole witness in her behalf.

Kelly, Champion, Denney & Pease, John W. Denney, Columbus, for appellant.

Billy E. Moore, Columbus, for appellee.

CLARK, Judge.

For determination here is the comparatively unusual situation of a trial judge having directed a verdict for plaintiff as to liability in a personal injury suit by a passenger in the lead automobile of a rear-end collision against the driver of the following car. Such limited verdicts with fixing of amounts of damages, if any, left to the jury, have been upheld by this court. See Sutherland's Eggs, Inc. v. Barber, 116 Ga.App. 393, 157 S.E.2d 491, and Rosenfeld v. Young, 117 Ga.App. 35(1), 159 S.E.2d 447 where both headnotes state the principle that 'The evidence having shown that the plaintiff was completely free of negligence and the defendant's testimony having revealed no legal reason or excuse for his failure to avoid colliding with the rear of the plaintiff's automobile, the trial judge did not err in directing a verdict for the plaintiff on the question of liability.' See also Pike v. Stafford, 111 Ga.App. 349, 141 S.E.2d 780 and Malone v. Ottinger, 118 Ga.App. 778, 165 S.E.2d 660 where summary judgment motions in rear-end cases were affirmed in accordance with this principle.

Defendant below as the appellant contends the evidence here takes the case out of those authorities and within the usual ambit of jury determination. In support are cited those cases which hold that the evidence must be construed most favorable to the party against whom the verdict was directed (Whitaker v. Paden, 78 Ga.App. 145(1), 50 S.E.2d 774; Williams v. Slusser, 104 Ga.App. 412(2), 121 S.E.2d 796; McCarty v. National Life, etc., Ins. Co., 107 Ga.App. 178, 129 S.E.2d 408; and Misfeldt v. Hospital Authority, etc., City of Marietta, 101 Ga.App. 579, 115 S.E.2d 244). The philosophy and mandate derived from those citations are condensed in Georgia Power Co. v. Owens, 124 Ga.App 660, 665, 186 S.E.2d 294, 297, in these words: 'The directing of a verdict, or granting a motion for judgment notwithstanding the verdict, is a very, very grave matter. By such act, the case is taken away from the jury, and the court substitutes its own judgment for the combined judgment of the twelve men good and true, and ends the case without another trial. Such act declares that there is no conflict in the evidence, and that all deductions and inferences from the evidence introduced demand a particular verdict.'

Recognizing the validity of these cases and particularly the instructive language just quoted, we nevertheless are constrained from a review of the trial transcript to conclude that the trial judge here ruled correctly.

Testimony came from the investigating police officer, the plaintiff, her husband who drove the lead vehicle in which she was riding, and from defendant. The defendant's own testimony concerning the collision was not only vague and equivocal but contradictory. We quote the following: 'I hit my brakes, and I thought my brakes failed. I don't know whe'er (sic) I missed my brakes, or my brakes didn't catch, . . . or either I missed my brakes.' (T., p. 133) 'I really don't know what distance it was, but I know, when I hit my brakes, and he stopped, I know I was too close on him to avoid it.' (T., p. 134) 'I don't know what caused him to stop, but he stopped on ahead of me, and then I, you know, went to trying to miss hitting him . . . not to hit him, and I hit my brakes. That's all I know. If he didn't stop, he slowed up mighty slow.' (T., p. 135) Moreover, the police officer found there was nothing wrong with the brakes and defendant made statements at the scene concerning her regrets which were detrimental to her although she denied them to be an express acknowledgment of fault.

Most significant was defendant's plea of guilty in traffic court to a charge of following too closely. Standing alone this guilty plea would not be sufficient to preclude submission of negligence to the jury as it 'is only a circumstance to be considered along with all the other evidence in the civil action for damages' Roper v. Scott, 77 Ga.App. 120, 124, 48 S.E.2d 118, 121, and therefore is not conclusive of the fact that defendant was negligent. Nevertheless, cumulative to the other evidence, this 'admission against interest' (Akin v. Randolph Motors, Inc., 95 Ga.App. 841,...

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24 cases
  • Hodges v. Vara, A04A1644.
    • United States
    • Georgia Court of Appeals
    • July 29, 2004
    ...verdict be granted, because the trial judge takes the determination of the facts from the jury. OCGA § 9-11-50; Johnson v. Curenton, 127 Ga.App. 687, 688, 195 S.E.2d 279 (1972). The appellate review of directed verdicts is based upon the "any evidence" rule to support the case of the nonmov......
  • Service Merchandise, Inc. v. Jackson
    • United States
    • Georgia Court of Appeals
    • June 27, 1996
    ...taken away from the jury, and the court substitutes its own judgment for the combined judgment of the [jury]." Johnson v. Curenton, 127 Ga.App. 687, 688, 195 S.E.2d 279 (1972). In granting such motions, we must remain mindful of the jury's role in the process to resolve any and all conflict......
  • Atlanta Coca-Cola Bottling Co. v. Jones, COCA-COLA
    • United States
    • Georgia Court of Appeals
    • June 18, 1975
    ...this case) operates as an 'admission against interest' and is a significant factor in determining negligence. See Johnson v. Curenton, 127 Ga.App. 687, 689, 195 S.E.2d 279. In arguing that its negligence was not conclusively shown, defendants rely upon witness Baxter's testimony that the Co......
  • Sentry Indem. Co. v. Sharif
    • United States
    • Georgia Court of Appeals
    • February 3, 1981
    ...fact that Sharif's testimony is equivocal, inconclusive and ambiguous, and should thus be judged against him (see Johnson v. Curenton, 127 Ga.App. 687, 690, 195 S.E.2d 279), there is no conflict in the evidence in this case that misrepresentations, omissions and incorrect statements were ma......
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