Simpson Grocery Co v. Holley

• Decision Date: 09 May 1935
• Docket Number: No. 24504.,24504.
• Citation: 180 S.E. 501,51 Ga.App. 355
• Parties: SIMPSON GROCERY CO. v. HOLLEY.
• Court: Georgia Court of Appeals

51 Ga.App. 355

180 S.E. 501

SIMPSON GROCERY CO.

v.HOLLEY.

No. 24504.

Court of Appeals of Georgia,

Division No. 2.

May 9, 1935.

Rehearing Denied June 15, 1935.

Syllabus by Editorial Staff.

Error from Superior Court, Floyd County; James Maddox, Judge.

Suit by J. W. Holley against the Simpson Grocery Company. Judgment for plaintiff, defendant's motion for a new trial was overruled, and defendant brings error.

Affirmed.

Maddox, Matthews & Owens, of Rome, for plaintiff in error.

Porter & Mebane, of Rome, and Leonard Farkas & Walter H. Burt, of Albany, for defendant in error.

Syllabus Opinion by the Court.

SUTTON, Justice.

Plaintiff's petition alleged that his automobile was damaged by reason of the negligence of the defendant's servant in the operation of its grocery delivery truck, which came out of a side road, not a public road or highway, into the Dixie Highway directly in front of plaintiff's on-coming automobile, which the driver of defendant's truck clearly saw, without slowing down or stopping, and thereby causing the collision and wrecking plaintiff's automobile. The defendant denied liability, and contended that its truck was not driven out of such side road, but was proceeding along the highway in front of plaintiff's automobile at a slow rate of speed, fixing to stop to make a delivery of groceries, when plaintiff's automobile, being driven at a high rate of speed, ran into the rear of the truck, and that the damage to plaintiff's automobile was caused by the negligence of the driver of the same and by his failure to exercise ordinary care to avoid the collision. No demurrer was filed. The trial resulted in a verdict in plaintiff's favor. The defendant moved for a new trial. The motion was overruled, and to it the movant excepted.

1. The evidence in this case was in sharp conflict as to the cause of the collision and the manner in which it occurred. Plaintiff's evidence was to the effect that defendant's truck was driven out of the side road directly in front of his automobile, without any signal or slowing down for the highway, although plaintiff's driver blew his horn, and although the driver of defendant's truck saw plaintiff's automobile approaching along the Dixie Highway. Defendant's evidence was to the effect that its truck was already proceeding along the highway on the right side of the road, that it was proceeding slowly, fixing to stop and make a delivery of some groceries, and that plaintiff's car was being driven at a rapid rate of speed and ran into the rear of defendant's truck, thereby causing the collision and damaging plaintiff's automobile, when there was plenty of room in the highway for him to pass around defendant's truck. Under the evidence, though conflicting, the verdict in plain tiff's favor was authorized. In such circumstances, this court will not disturb the finding of the jury, based solely upon the sufficiency of the evidence to support the verdict. "A verdict supported by any evidence and approved by the trial judge cannot be set aside by this court because of conflicting evidence or alleged insufficiency of evidence." Stedham v. Kinney, 41 Ga. App. 543, 153 S. E. 610; Collins v. Broom, 21 Ga. App. 420, 94 S. E. 645.

2. The failure of the court to charge the jury, without request, that "an operator of a vehicle shall have the right of way over the operator of another vehicle who is approaching from the left in an intersecting highway, but shall give the right of way to an operator of a vehicle approaching from the right on an intersecting highway, " does not require the grant of a new trial to the defendant in this case. While the plaintiff contended that the defendant's truck was driven out from a side road, not a highway or public road, on plaintiff's right, into the Dixie Highway, directly in front of his approaching automobile, which was proceeding in a northerly direction along the highway, the defendant denied this, and specifically contended that its truck did not come out from such side road, but had been in the highway for some distance and was proceeding along the same in front of plaintiff's automobile, and that plaintiff's automobile negligently ran into...