Maddox v. Don Pair Motors, Inc., 42928

• Decision Date: 05 September 1967
• Docket Number: No. 42928,No. 3,42928,3
• Citation: 158 S.E.2d 316,116 Ga.App. 533
• Parties: Joseph G. MADDOX v. DON PAIR MOTORS, INC
• Court: Georgia Court of Appeals

Page 316

158 S.E.2d 316

116 Ga.App. 533

Joseph G. MADDOX v. DON PAIR MOTORS, INC.

No. 42928.

Court of Appeals of Georgia, Division No. 3.

Sept. 5, 1967.

Rehearing Denied Oct. 23, 1967.

Swift, Currie, McGhee & Hiers, Robert S. Harkey, Atlanta, for appellant.

Rich, Bass, Kidd & Broome, E. Dale Dewberry, Decatur, for appellee.

Syllabus Opinion by the Court

DEEN, Judge.

(a) As opposed to a judgment for plaintiff by the court trying the case without a jury, the enumeration of errors raises only the question of whether a judgment for the defendant was demanded. The plaintiff's car was stopped at an intersection in the southbound inside lane on a city street, signaling and waiting for the opportunity to make a left turn when it was hit from the rear dead center by the defendant's automobile. The defense was that the automobile had been purchased new three days previously; that the brakes had previously given no indication of improper functioning but that when the defendant saw plaintiff's automobile stop or signal about 100 feet in front of him he applied his brakes and, after catching briefly they ceased to function, that he pumped the brakes and they caught again but not in time to avoid the collision, and that he was not negligent in any particular alleged.

(b) The trior of fact may take certain portions of the testimony of one witness and combine them with certain portions of the testimony of another to reach a given result. Scott v. Imperial Hotel Co., 75 Ga.App. 91, 42 S.E.2d 179. The court might from the plaintiff's testimony have believed that the initial skid marks laid down by the defendant's automobile were as much as 20 feet in length on the initial grab of the brakes, and another 20 feet in length just before hitting the stationary automobile, and that, if the defendant had not been following too closely, or had not been traveling at an excessive rate of speed under the conditions prevailing he might have stopped in time to avoid the collision. He might also have found that the defendant's failure to use his emergency brake or to ascertain whether he could avoid the plaintiff's stationary vehicle by pulling into the right traffic lane also constituted negligence. While it is true that the plaintiff's petition did not charge negligence in driving too fast, failing to apply the emergency brakes or failing to steer the automobile around the plaintiff's car, plaintiff did charge negligence in failing to have the car under proper control...