Smith v. Barnett, 39944
| Decision Date | 08 May 1963 |
| Docket Number | No. 39944,No. 2,39944,2 |
| Parties | A. C. SMITH et al. v. Robert G. BARNETT, by next friend |
| Court | Georgia Court of Appeals |
syllabus by the Court
The trial court did not err in denying the defendants' motion for judgment notwithstanding the verdict and their amended motion for new trial.
Robert Gerald Barnett, a minor, by and through Comer L. Barnett, as next friend, brought suit against Mrs. Ellorie V. Smith, A. C. Smith, Roy Lee Thomas, Jr. and Roy Lee Thomas, Sr. to recover damages for personal injuries sustained by the plaintiff as the result of a collision between an automobile driven by Roy Lee Thomas, Jr., in which the plaintiff was riding as a guest passenger, and an automobile operated by Mrs. Smith. The case proceeded to trial before a jury, and a verdict was returned in favor of the plaintiff. The defendants Smith filed a motion for new trial on the general and special grounds and a motion for judgment notwithstanding the verdict, and the exception is to the orders of the trial court denying said motions. This is a companion case to that of Thomas v. Barnett, 107 Ga.App. 717, 131 S.E.2d 818, and reference may be had to the decision of this court in that case for a summary of the pleadings of the parties and the evidence adduced on the trial.
Greene, Neely, Buckley & DeRieux, Burt DeRieux, J. Douglas Stewart, Atlanta, Grady Vandiviere, Canton, for plaintiffs in error.
Barry Phillips, Nall, Miller, Cadenhead & Dennis, A. Paul Cadenhead, Thomas A. Rice, Atlanta, for defendant in error.
1. The defendants in error have filed a motion to dismiss the writ of error on the ground that the transcript of record was not certified and transmitted to this court within 20 days of the filing of the bill of exceptions with the clerk of the court, and that the transcript of record had not been properly certified to as being true by the clerk of the trial court, as required by Code Ann. § 6-1001. Art. VI, Sec. II, Para. V of the Constitution of 1945 (Code Ann. § 2-3705) provides as follows: 'No writ of error shall be dismissed because of delay in transmission of the bill of exceptions and the copy of the record, or either of them, resulting from the default of the clerk or other cause, unless it shall appear that the plaintiff in error or his counsel caused such delay.' The original certificate of the clerk did not affirmatively disclose the cause for the delay in transmitting the transcript of record to this court and in a supplemental certificate filed by the clerk, see Rutherford v. Tidwell, 103 Ga.App. 557, 558, 120 S.E.2d 38, the clerk certified that said delay was not occasioned by the intervention of plaintiffs in error or their counsel. Accordingly, since it does not affirmatively appear from the clerk's certificate that the delay in the transmission was caused by plaintiffs in error or their counsel, and since the certificate of the clerk is in substantial compliance with the provisions of Code Ann. § 6-1001 as to the correctness of the record certified, the motion to dismiss is without merit.
2. The evidence adduced on the trial of this case was sufficient to authorize the verdict rendered and the defendants' motion for judgment notwithstanding the verdict and the general grounds of the 3. Special ground 1 of the amended motion for new trial complains that the court erred in giving in charge to the jury the provisions of Code § 68-1634 which provide that drivers of vehicles proceeding in opposite directions shall pass each other to the right, it being contended by the defendants that this section does not apply in the case of a collision occurring at an intersection where one of the parties is making a left turn. This contention has been decided adversely to the position of the defendants in Pulliam v. Casey, 93 Ga.App. 324, 327(2), 91 S.E.2d 807, and this ground is without merit.
motion for new trial are without merit. The jury in this case was authorized to find, inter alia, that Mrs. Smith crossed over the center line of the highway and entered the left or on-coming lane of traffic at a point approximately 20 feet north of the intersection at which she planned to make a left turn, in violation of Code Ann. § 68-1644(b), which prescribes the procedure for making left hand turns on two-way roadways; and that the violation of said Code section, which would constitute negligence per se, contributed to the proximate cause of the plaintiff's injuries.
4. Under the facts and circumstances of this case, it was proper for the trial court to give in charge to the jury the principles of law embodied in Code Ann. § 68-1651 which provides as follows: 'The driver of a vehicle within an intersection intending to turn to the left shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard, but said driver, having so yielded and having given a signal when and as required by this law, may make such left turn and the drivers of all other vehicles approaching the intersection from said opposite direction shall yield the right of way to the vehicle making the left turn.' While the evidence was in sharp conflict as to whether the Thomas automobile was in a position where it could be seen by Mrs. Smith at the time she commenced to make the left turn, the jury was authorized to find that it was and that Mrs. Smith was negligent in attempting to make the turn in the presence of the on-coming Thomas automobile in violation of the provisions of this Code section. Special ground 4, which contends that said charge was unauthorized by the evidence, is without merit.
5. The trial court did not err, as contended in special ground 6, in giving in charge to the jury the provisions of Code Ann. § 68-1633(a) which enumerate the exceptions to the rule that all vehicles shall be driven on the right side of the roadway; nor did the...
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Rahal v. Titus, 40511
...of Code Ann. § 6-1001 as to the correctness of the record certified, the motion to dismiss is without merit.' Smith v. Barnett, 107 Ga.App. 849, 850, 132 S.E.2d 139, 141. 2. All grounds for review incorporated in a prior writ of error, or grounds which were known, or by the exercise of ordi......
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