Smith v. Nelson, s. 45822

• Decision Date: 08 April 1971
• Docket Number: No. 3,Nos. 45822,45823,s. 45822,3
• Citation: 182 S.E.2d 332,123 Ga.App. 712
• Parties: Harry D. SMITH et al. v. Lois D. NELSON. Robert M. KNIGHT v. Lois D. NELSON
• Court: Georgia Court of Appeals

Page 332

182 S.E.2d 332

123 Ga.App. 712

Harry D. SMITH et al. v. Lois D. NELSON.

Robert M. KNIGHT v. Lois D. NELSON.

Nos. 45822, 45823.

Court of Appeals of Georgia, Division No. 3.

April 8, 1971.

Rehearing Denied April 29, 1971.

Syllabus by the Court

1. It was not error to deny the motions for new trial on the general grounds.

2. Where traffic lane markings have been placed on a public road or highway by the State Highway Department, or by local authorities, reference to the 'centerline' of the road or highway are to be related to these, and not to some other physical measurement of the roadway or highway itself. A charge leaving to the jury the determination of where the centerline of a paved road or highway may be when it has been so marked off by painted lines is error.

3. Evidence offered for the making of comparisons should reveal similar or substantially similar conditions existing for the comparison; otherwise it is inadmissible.

4. The standard to be applied in determining whether the operator of a motor vehicle has made an emergency stop on a public highway is whether an ordinarily prudent man, in the same or similar circumstances, and with the same information available to him as to conditions to be considered in determining where the stop should be made, would have acted in the same manner.

5. The grant of a new trial to one who is a party to a joint judgment works the grant of a new trial or the setting aside of the judgment as to all other parties.

On June 1, 1965 Robert M. Knight, serving in the U.S. Navy and stationed at Mayport, Fla., planned to take leave beginning at midnight and drive to his home in Charlotte, N.C. Wendell K. Nelson, employed as cashier in the Jacksonville office of Equitable Life Assurance Society, and who had formerly lived and worked in Charlotte, desired to ride up with him, and, according to plan, Knight stopped at Nelson's home just after midnight, picked him up and they started out in Knight's Volkswagen camper on U.S. Highway No. 17 toward Charlotte, via Savannah, with Knight driving and Nelson riding as a guest in the right front seat. Two stops were made for refreshment, the last being some 20 miles before reaching Savannah and at approximately 4:15 a.m. After spending perhaps 15 or 20 minutes at the refreshment stop drinking coffee, the two got back into the Volkswagen and rode on. Nelson went to sleep and was asleep when the vehicle crashed into the rear of a tractor-trailer combination loaded with watermelons at the outskirts of Savannah that had stopped because of a flat tire. The collision occurred shortly after 5 a.m., prior to sunrise at 5:19, but after there was considerable light and most vehicles had extinguished their lights. Nelson was fatally injured.

The tractor-trailer was owned by Harry D. Smith, a resident of North Carolina, and operated by his employee, Theron Whitaker, also a North Carolinean.

Whitaker testified that the tractor-trailer had been loaded with watermelons the afternoon before at Ocala, Fla., that he was en route to New York City to deliver them to a designated consignee, and that his trip had been uneventful until he reached a point opposite a fire plug some three-tenths of a mile back (speedometer measurement made by police) from where the rig had been stopped, when he heard a noise indicating that he had run over something on the road or that a tire had blown out. The trailer load of melons began to 'waver,' making him know it was tire trouble, and he began to look for a suitable place to stop. The highway was a two-lane, paved route-each lane about 12 feet in width. He was in the right or northbound lane. The shoulders were of sand and, though there was room on the shoulders and beyond for driving the rig, he feared that his load, weighing a total of 73,000 pounds, might find these to be too soft and unstable for tire changing. However, he came to a widened place in the highway just before reaching the point where Tremont Road came into it from the left (it did not cross, but 'deadened' into U.S. No. 17), and he pulled over to the edge of the paving-the right wheels from three to six inches to the edge-and stopped. He did not go on across the viaduct just ahead because he feared that while on it other tires might blow out, compounding his trouble. He had been driving with the parking lights on, but on stopping he turned on blinking lights which were on the rear of the trailer and which were operating, and got out to examine the tires. On reaching the right rear he found, as he had expected, one of the duals to have gone down. Looking back down the road he saw the Volkswagen approaching rapidly, with parking or low beam lights on.

The road was marked with a white 'centerline' which divided a twelve-foot lane on the left or westerly side for southbound traffic from a lane or portion of the paved road on the easterly side (for northbound traffic and for traffic intending to make a left turn into Tremont Road) which was 24.3 feet wide. The tractor-trailer had a width of seven feet, ten and three-fourth inches, leaving right at 16 feet between its left side and the painted 'centerline.' The Volkswagen was 70 1/2 inches wide. The weather was clear; there was no fog. The road looking back toward Jacksonville was, for a distance of about two miles, substantially level, with no appreciable curves. There were no visual obstructions. A white painted line was at the outer edge of the asphalt paving. The Volkswagen made no skidmarks, but when its right front struck the left rear of the trailer it 'bounced back' about 15 feet.

There was no other traffic in the immediate vicinity at the time. The only eye-witnesses were Whitaker, who drove the tractor-trailer, and Knight, who drove the Volkswagen. Whitaker testified that when he saw the Volkswagen coming he assumed that it would follow straight ahead and pass the tractor-trailer to the left, there being ample room to do so. However, when he saw that it began to pull to the right as the highway widened he began to wave his hands and to yell in an attempt to alert the driver to turn and pass the rig to the left. Apparently the driver neither saw nor heard him and kept coming toward the rear of the trailer. He saw that his efforts were unavailing and jumped back to keep from being hit himself. He had been stopped only a matter of three or four minutes. Noticing that the rear lights on the left side of the trailer had been demolished by the collision he turned the lights off, fearing that a short on the line occasioned by the impact might result in fire breaking out. He had flares in the cab, but since it was already daylight he did not put any out. A cab came by within a minute or two after the collision and the driver, at Whitaker's request, by radio summoned the police and an ambulance.

Knight testified that it was his custom to drive near the right edge of the lane on a two-lane highway, and that he had been watching and following the white line along the edge prior to the collision. He did not see the tractor-trailer until 'just as he hit it.' Policeman Burns, who was cruising in that area, got a radio call about the accident around 5:05, and reached the scene within a matter of five minutes. He found the situation as above described. There were no lights burning on the tractor-trailer rig so far as he saw, but he had not had his lights turned on either, for it was already daylight and most vehicles were operating with lights off. It was clear. There was no fog. One could easily see back down the highway for a distance of 300 to 400 feet or more. The rear of the trailer was a sort of dirty silver color, which might have blended with the grey asphalt of the road. Ahead of the tractor-trailer was a viaduct across the railroad and the visibility to the top of that was clear, but one could not very well see beyond that point. There were no shoulders or places for stopping on the viaduct. At his request or direction Whitaker moved the tractor-trailer forward and over onto the shoulder of the road where it remained until a service station attendant came out and changed the tire.

Mr. Edwards and Mr. Jernigan, who operated businesses on U.S. 17 between where Whitaker had stopped and where he had heard the noise indicating that there might be tire trouble, testified that on numerous occasions trucks, some of a tractor-trailer type similar to that which Whitaker had driven, some loaded and some empty, had driven completely off the highway onto the ground near their places to make inquiry as to direction, etc., and that none had bogged down.

Mrs. Nelson, as the widow, brought this action against Mr. Smith, the owner, and Mr. Whitaker, the driver, of the tractor-trailer, specifying acts alleged to be ordinary negligence, and against Mr. Knight charging him with acts of gross negligence, and seeking to recover the full value of Mr. Nelson's life. After trial the jury returned a verdict for plaintiff against all defendants. Mr. Knight filed his motion for new trial, as did Smith and Whitaker, and these were overruled, as amended. From those orders and from a judgment on the verdict these appeals were entered.

Bouhan, Williams & Levy, Frank W. Seiler, Brannen, Clark & Hester, Perry Brannen, Perry Brannen, Jr., Savannah, for Harry D. Smith and others.

Falligant, Doremus & Karsman, Ogden Doremus, Savannah, for Robert M. Knight.

Frank S. Cheatham, Savannah, for appellee.

EBERHARDT, Judge.

1. The general grounds. The Knight appeal is as to the overruling of his motion for new trial on the general grounds only, and as to it we find no difficulty in concluding that the general grounds are without merit. There was ample evidence which authorized a finding that he was guilty of gross negligence.

The situation in the Smith-Whitaker appeal is somewhat different. In it appellants strongly urge that Mr. Nelson's injury and death resulted solely from the negligence of Knight, and on ...