Lovejoy v. Tidwell

• Decision Date: 05 December 1956
• Docket Number: No. 19458,19458
• Citation: 212 Ga. 750,95 S.E.2d 784
• Parties: Wayne Melvin LOVEJOY v. Charles TIDWELL.
• Court: Georgia Supreme Court

Page 784

95 S.E.2d 784

212 Ga. 750

Wayne Melvin LOVEJOY v. Charles TIDWELL.

No. 19458.

Supreme Court of Georgia.

Dec. 5, 1956.

Syllabus by the Court.

The admissibility of evidence of a rate of speed of an automobile at a time and place other than the place of collision (or immediately prior thereto) depends upon the facts of each case and rests largely in the discretion of the trial judge.

Charles Tidwell filed an action for damages against W. M. Lovejoy. The jury's verdict was for the defendant. The plaintiff's motion for a new trial, as amended, was overruled, and the plaintiff excepted. The Court of Appeals reversed the judgment denying the motion for new trial, upon the ground that the testimony of two witnesses for the defendant was irrelevant and prejudicial, and held that the trial court erred in admitting the testimony over proper objection of the plaintiff. (See Tidwell v. Lovejoy, 94 Ga.App. 60, 94 S.E.2d 39, for a more complete statement of facts and the opinion of the Court of Appeals.) The defendant's application for certiorari, assigning error on the judgment of the Court of Appeals, was granted by the Supreme Court.

Martin, Snow & Grant, Macon, for plaintiff in error.

George L. Jackson, Gray, H. T. O'Neal, Jr., Macon, for defendant in error.

HEAD, Justice.

The opinion of the Court of Appeals concisely sets forth the testimony of the witnesses Studer and Mooneyham, to the effect that, while they were traveling toward Macon at a rate of speed of from 50 to 55 miles per hour, the plaintiff's Lincoln automobile passed them at a speed of from 85 to 95 miles per hour, and that, 10 or 15 minutes later, they arrived at the scene of the collision, which they neither saw nor heard. The Court of Appeals ruled that the admission of this evidence as to the speed of the plaintiff's automobile at an 'undetermined time' before the collision, and at an 'undetermined distance' from the collision, was reversible error.

It is true that neither of the defendant's witnesses stated the exact time of the collision, nor the exact distance they were from the scene of the collision when the plaintiff passed them. Facts are stated by the witnesses, however, from which the jury could have ascertained these facts with a reasonable degree of certainty. For example, if the plaintiff passed the defendant's witnesses 10 minutes before they reached the scene of the collision, while they were traveling at 55 miles per hour, the point of such passage was less than 10 miles from the place of collision. If at the time the plaintiff passed the witnesses he was traveling at the lowest rate of speed stated by them, to wit, 85 miles per hour, it would have required approximately 6 1/2 minutes for the plaintiff to have reached the scene of the collision. Facts reasonably and logically consequent from facts proved may be considered by the jury in arriving at their verdict. Code, § 38-123.

In the present case the defendant alleged in his answer that the plaintiff's damages were the result of his own negligence. The defendant testified that, at the time of the collision the plaintiff's car was traveling at a speed of 70 miles per hour. The rate of speed by the plaintiff was therefore an issue for determination by the jury on the question of negligence. Counsel for the plaintiff state in their brief that the speed of the plaintiff's car upon the highway 'was not necessarily indicative of the speed' at the point of collision. Testimony of excessive speed upon the highway shortly prior to the collision might be such a fact, however, if believed by the jury, as would tend to support the defendant's testimony of excessive speed by the plaintiff at the time of the collision.

It has long been the rule in this State that where the relevancy or competency of evidence is doubtful, it should be admitted and its weight left to the determination of the jury. Dalton v. Drake, ...