Powers v. Pate
| Decision Date | 15 November 1962 |
| Docket Number | No. 2,No. 39503,39503,2 |
| Citation | 107 Ga.App. 25,129 S.E.2d 193 |
| Parties | M. L. POWERS v. L. H. PATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court
The court did not err in overruling the motion for new trial.
Max Lemar Powers filed a suit against Leonard Homer Pate and Ralph S. Pate to recover damages on account of personal injuries and damage to his motorcycle allegedly sustained as a result of a collision between a motorcycle being driven by him and a pickup truck being driven by Leonard Homer Pate. By an amendment to his petition he struck the name of Ralph S. Pate as a defendant. Succinctly, the evidence shows that the collision occurred in the intersection of Georgia State Highway No. 111 and Georgia State Highway No. 202. About 6:30 p. m., on August 19, 1960, plaintiff was proceeding in an easterly direction on Highway 111, and immediately before the collision he was following a pickup truck. The defendnt was driving a pickup truck in a southerly direction on Highway 202. The evidence showed that the following signs were located on the right side of Highway 202, facing southbound traffic at or near the intersection in question: 'Slow,' 'Dangerous Intersection,' 'Stop Ahead,' and 'Stop.' The defendant testified that he was familiar with the intersection, and as he brought his truck to a stop before entering the intersection, he saw a pickup truck approaching the intersection from his right, and, upon entering the intersection, the driver of the approaching pickup truck began making a left turn. But instead of proceeding to the center of the intersection, turning and passing on the defendant's left, the driver of the approaching pickup truck took a short cut and passed on the defendant's right. The defendant testified that he never saw the plaintiff until the moment of the collision; that he had seen only the approaching pickup truck; that he had looked and did not see any traffic behind the approaching truck; and that he could have seen an automobile behind the truck if there had been one behind it.
Plaintiff testified that he saw the defendant's truck approaching the intersection and it appeared as though it was going to be brought to a stop; that he (plaintiff) reduced his speed 'to about 5 to 10' miles per hour as he entered the intersection; that he reduced his speed until he was traveling about 5 to 6 miles per hour when he reached a point one-helf to two-thirds across the intersection where the collision occurred; that when he was one-half way across the intersection he saw the defendant's truck for the second time; that prior to his entering the intersection the truck which he was following made a short-cut left turn and blocked his view of the defendant's truck; and that the defendant's truck came into the intersection so suddenly he 'didn't have time to avoid it or stop or move or anything.'
A witness testified that he was driving the pickup truck which the plaintiff was following immediately prior to the collision; that he had passed the plaintiff about 150 or 200 yards from the intersection; that he (witness) was traveling about 50 miles per hour when he passed the plaintiff, and he thought the plaintiff was going about 30 miles per hour when he passed him; that he (witness) slowed down to make a left turn.
There was evidence to show the extent of the plaintiff's personal injuries and the damage to his motorcycle. The jury returned a verdict against Leonard Homer Pate in the amount of $800. The plaintiff filed a motion for new trial on the usual general grounds and, by amendment, several special grounds were added. The court overruled the motion and to this ruling the plaintiff excepts and assigns error.
Emory M. Hiers, Whelchel & Whelchel, Hoyt H. Whelchel, Jr., Moultrie, for plaintiff in error.
George A. Horkan, Jr., Moultrie, William T. Divine, Jr., Albany, for defendant in error.
1. 'Questions of negligence, diligence, contributory negligence, and proximate cause are peculiarly matters for the jury, and a court should not take the place of the jury in solving them, except in plain and undisputable cases.' Eubanks v. Mullis, 51 Ga.App. 728, 730, 181 S.E. 604, 605. See Southern Stages v. Clements, 71 Ga.App. 169, 30 S.E.2d 429; Southern Bakeries v. White, 103 Ga.App. 146, 118 S.E.2d 724, and cases cited therein. '* * * [I]t has been held many times by the appellate courts that what amounts to negligence, contributory or comparative negligence, proximate cause, etc., are ordinarily questions for the jury under appropriate instructions, and such questions will not be determined by the court as a matter of law except in plain and undisputed cases.' Callaway v. Pickard, 68 Ga.App. 637, 641, 23 S.E.2d 564, 569, and cases cited therein. When the rule concerning comparative negligence is involved in a case, the verdict of the jury cannot be set aside on the ground that the amount of the damages awarded is inadequate (Cox v. Nix, 87 Ga.App. 837, 75 S.E.2d 331; see Moore v. Sears, Roebuck & Co., 48 Ga.App. 185, 172 S.E. 680), aliter, when liability is established, a verdict is rendered for the plaintiff, and comparative negligence is not chargeable to the plaintiff (see Bishop & Parsons v. Mayor, etc. of Macon, 7 Ga. 200(6); Hood v. Ware, 34 Ga. 328; Roddenberry Hdwe. Co. v. Merritt, 17 Ga.App. 425, 87 S.E. 681; Esa v. State, 19 Ga.App. 14, 90 S.E. 732; McLendon v. Floyd, 59 Ga.App. 506, 1 S.E.2d 466; Tallent v. McKelvey, 105 Ga.App. 660, 125 S.E.2d 65). In the instant case we are of the opinion that the question of comparative negligence was involved. While it is true that there were warning signs and a stop sign when defendant approached the intersection, the uncontradicted evidence shows that he did stop before entering it. Therefore, the defendant did not violate any stop sign which had been placed at the intersection for the control of traffic. Teague v. Keith, 214 Ga. 853, 108 S.E.2d 489. After having stopped, it was a question for the jury as to whether he was negligent in entering the intersection. The jury found for the plaintiff, and therefore, it is obvious that they found that the defendant was negligent in some degree. On the other hand, even if the plaintiff had the right of way at the intersection, ...
To continue reading
Request your trial
-
Beal v. Braunecker, 74879
...of the jury cannot be set aside on the ground that the amount of the damages awarded is inadequate. [Cits.]" Powers v. Pate, 107 Ga.App. 25, 27(1), 129 S.E.2d 193 (1962). The trial court did not err by denying appellant's motion for new trial on this ground. See Wright v. Satilla Rural Elec......
-
Atlanta Coca-Cola Bottling Co. v. Jones, COCA-COLA
...jury, and a court should not take the place of the jury in solving them, except in plain and undisputable cases' (Powers v. Pate, 107 Ga.App. 25, 27, 129 S.E.2d 193, 195), nevertheless where 'there is no conflict in the evidence as to any material issue and the evidence introduced, with all......
-
Atlanta Coca-Cola Bottling Co. v. Jones
...with the rendition of the decision in Pike v. Stafford, 111 Ga.App. 349, 141 S.E.2d 780 (1965). That case, citing Powers v. Pate, 107 Ga.App. 25, 27, 129 S.E.2d 193 (1962), stated the general rule: 'Questions of negligence, diligence, contributory negligence, and proximate cause are peculia......
-
Atlanta Recycled Fiber Co. v. Tri-Cities Steel Co.
...mistake, and/or manifest error. See Code §§ 38-102 and 105-2015. Cox v. Nix, 87 Ga.App. 837(1), 838, 75 S.E.2d 331; Powers v. Pate, 107 Ga.App. 25, 27(1), 129 S.E.2d 193. Where there is comparative negligence involved in a case a jury verdict should not be set aside upon the grounds that da......