McCurry v. Moffett

• Court: Georgia Court of Appeals
• Writing for the Court: WORRILL; SUTTON
• Citation: McCurry v. Moffett, 80 Ga.App. 761, 57 S.E.2d 451 (Ga. App. 1950)
• Decision Date: 02 February 1950
• Docket Number: Nos. 1,2,No. 32662,32662,s. 1
• Parties: McCURRY v. MOFFETT et al

Page 451

57 S.E.2d 451

80 Ga.App. 761

McCURRY v. MOFFETT et al.

No. 32662.

Court of Appeals of Georgia, Division Nos. 1, 2.

Feb. 2, 1950.

Syllabus by the Court.

Questions of diligence and negligence, including contributory negligence, are questions peculiarly for the jury, and a nonsuit should not be granted where there is any evidence tending to sustain the plaintiff's claim, or where the jury can fairly and reasonably infer from the evidence a state of facts favorable to the plaintiff. Under the evidence in this case the court erred in granting a nonsuit.

Wade McCurry, Jr., sued K. S. Moffett, doing business as Moffett Transit Lines, Herman Pitts and Willie Spivey, agents and employees of Moffett, and Pennsylvania Threshermen and Farmers' Mutual Casualty Insurance Co. for damages for personal injuries and property damage in Bibb Superior Court. The defendants denied liability. The case proceeded to trial before the judge and a jury and after the introduction of the plaintiff's evidence, a motion for nonsuit was granted, and the case dismissed. To this judgment the plaintiff excepted.

The plaintiff's evidence showed that on January 7, 1949, at about 6:20 p.m., he was driving his automobile on U.S. Highway No. 41 in a southerly direction toward the city of Macon, at approximately 50 miles per hour, after dark, with his headlights burning; that when his car reached a point about 1 and 1/2 miles north of the city limits of Macon it collided with a van type truck, belonging to the defendant Moffett; that the truck was parked in the right hand lane of the highway facing in a southerly direction with all wheels of the truck on the pavement and with the tail gate down (horizontal) and extending across the center line of the highway; that defendant's truck had no tail lights burning on it, and no warning flares or fires had been placed so as to warn persons approaching it from the rear; that as the plaintiff approached the scene of the collision he was traveling about 50 miles per hour, and that something in the road attracted his attention, but he thought it was a shadow until he got to within 45 or 60 feet of the point of the collision, when he saw the defendant's truck parked in the right hand lane of the highway; that he turned his car sharply to the left to avoid running into the rear end of the parked truck, but the right hand side of his automobile struck the tail gate of the truck demolishing the entire right side of plaintiff's car. Plaintiff's evidence showed that he sustained certain personal injuries as a result of the collision.

Turpin & Lane, Macon, John D. Mattox, Macon, for plaintiff in error.

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

WORRILL, Judge.

The plaintiff contends that the defendants were negligent as follows: (a) In parking said truck on said highway, when it was practicable to park the truck near the side of the road and off of the pavement; (b) In failing to display clearance lights at each extremity on the rear of such truck; (c) In parking the truck so that said truck and portions thereof extended across the center line of said highway, (d) In failing to have the truck equipped with rear reflectors; (e) In failing to have a lamp mounted on the rear of said truck capable of displaying a red light visible for the distance of at least 100 feet behind the vehicle.

In this case the only question presented is whether or not the court erred in granting the nonsuit. By reference to the brief of the evidence in the case it will be discovered that the evidence shows that the plaintiff was operating his automobile in a lawful manner, running approximately 50 miles per hour; that he was returning home from his work; that there was no implication that he had been drinking or suffered from any physical or mental disability that would have impaired his vision; that he was observing the highway ahead; that the defendants' truck which was illegally parked on the highway, had no doors in the rear which would tend to reflect plaintiff's headlights; that the trees in the background on each side of the road cast shadows and the open back of the truck tended to blend with the trees and the shadows cast by the trees; and that the collision occurred at dusk or first dark.

The defendant contends that the plaintiff's own testimony shows that he did not exercise ordinary care and diligence for his own safety and protection after the defendant's negligence, if any, was discovered by him, and that a judgment of nonsuit was proper. Even if this be true, there was other evidence, there were attendant circumstances, and also there were other witnesses who testified concerning the collision, whose versions of the collision as disclosed by the evidence could have been accepted by the jury, and so it was erroneous to grant the nonsuit. See Brown v. Savannah Electric & Power Co., 46 Ga.App. 393(1), 167 S.E. 773; Ray v. Green, 113 Ga. 920(2), 39 S.E. 470.

It is not proper to grant a nonsuit merely because the court would not allow a verdict for the plaintiff to stand. But if the plaintiff fails to make out a prima facie case, or if, admitting all the facts proved and all reasonable deductions from them, the...