Sullivan v. Morris

• Decision Date: 15 January 1935
• Docket Number: No. 23844.,23844.
• Citation: 178 S.E. 324,50 Ga.App. 394
• Parties: SULLIVAN et al. v. MORRIS.
• Court: Georgia Court of Appeals

50 Ga.App. 394

178 S.E. 324

SULLIVAN et al.

v.MORRIS.

No. 23844.

Court of Appeals of Georgia,

Division No. 1.

Jan. 15, 1935.

Syllabus by the Court.

The evidence supports the verdict, and there is no merit in the only special ground of the motion for a new trial.

Error from Superior Court, Haralson County; J. R. Hutcheson, Judge.

Suit by J. H. Morris against E. L. Sullivan and another. Judgment for plaintiff, defendants' motion for a new trial was overruled, and defendants bring error.

Affirmed.

E. S. & Jas. Loy Griffith, of Buchanan, for plaintiffs in error.

Smith & Millican, of Carrollton, and Walter Matthews, of Buchanan, for defendant in error.

MacINTYRE, Judge.

J. H. Morris brought an action against E. L. Sullivan and V. D. Hamilton to recover $6,000 damages arising out of a collision between an automobile driven by the plaintiff and a truck driven by an employee of the defendants. A jury awarded the plaintiff $600 damages. The defendants except to the overruling of their motion for a new trial.

[I] The collision occurred near the middle of a long, gradual curve in the public highway running in an easterly direction from Carrollton to Whitesburg. Plaintiff's automobile was going east, and defendants' truck west, and each was, or should have been, in plain view of the driver of the other vehicle for some distance before the collision. The plain tiff's case was that he was driving on the proper side of the road, the side to his right, while the defendants' truck was traveling toward him on the same side of the road; that plaintiff remained on his side of the road until the truck, still traveling on the same side of the road, was so close to him that he turned to his left to avoid a collision with the truck, which would have been unavoidable had both cars held their course; that, after plaintiff had so turned to his left, the driver of the truck suddenly turned to his right while running at a rapid rate of speed, and drove his truck into plaintiff's automobile; and that, by reason of the collision, plaintiffs leg and two of his ribs were broken, and his automobile, which was worth $400, was a total loss.

The gist of the defendants' case was that, while the truck was on the wrong side of the road, the driver of the truck turned to his right in ample time to have passed the automobile in perfect safety, and, after he had done so, the plaintiff, for some unaccountable reason, suddenly turned to his left and ran into the truck, damaging it in the sum of $118. There was testimony that the driver of the truck stated, after the collision, that "he just didn't see the car until he was right on it, " but the driver of the truck denied making any such statement.

It being peculiarly the province of the jury to pass upon the credibility of witnesses and the weight of evidence, this court can do nothing else than hold that the trial judge did not err in overruling the general grounds of the motion for a new trial.

In the only special ground of the motion for a new trial, it is averred that the court erred in charging the jury as follows: "If you do not believe the plaintiff was negligent, if you believe the injury was the result solely of the negligence of the defendant in some of the particulars specified in the petition, you should give the plaintiff full damages in the sense of the instructions heretofore given you." It is insisted that this charge was erroneous because it expressed the opinion that "the plaintiff was injured, that the defendant was negligent, and that the plaintiff should have full damages." When fairly construed, we do not think that the charge is susceptible to any of the foregoing criticisms. We confess that it is difficult for this court to appreciate the full significance of the criticism of the instruction that the jury "should give the plaintiff full damages in the sense of the instructions heretofore given you, " for the reason that the ground does not indicate whatthose instructions were. Regardless of this, however, since suit was for $6,000, and the verdict for only $600, notwithstanding the fact that the plaintiff was severely and painfully injured and his automobile demolished, it could hardly be fairly concluded that the charge as to "full damages" influenced the jury or harmed the defendants. We hold that this ground shows no reason for reversing the case.

Judgment affirmed.

BROYLES, C. J., concurs.

GUERRY, Judge (concurring specially).

It is generally true that, if a collision takes place on the wrong side of the road with respect to one of the parties, the presumption of guilt is against such party on the wrong side of the road. McGee v. Young, 132 Ga. 606, 64 S. E. 689. In the present case it is apparent that at the time of the collision the plaintiff himself was on the wrong side of the road, and, nothing else appearing, he would not be entitled to recover. Stohlman v. Martin, 28 Cal. App. 338, 152 P. 319; Shupe v. Rodolf, 185 Cal. 371, 197 P. 57; Hagenah v. Bidwell, 46 Cal. App. 556, 189 P. 799; Herdman v. Zwart, 167 Iowa, 500, 149 N. W. 631; Stobie v. Sullivan, 118 Me. 483, 105 A. 714; Perlstein V. Am. Exp. Co., 177 Mass. 530, 59 N. E. 194, 52 L. R. A. 959; Black v. Parke, Davis & Co., 211 Mich. 274, 178 N. W. 700. "The presumption that the one on the wrong side of the highway is guilty of negligence, is one which may be rebutted.* * * Properly considered, the rule of the road is a rule of negligence, and the fact that a person was on the wrong side of the road when a collision took place, does not per se make him liable for damages, but his liability is determined by the rules of law applicable to cases of negligence." Huddy on Automobiles (7th Ed.) § 323. "In many of the decisions which hold that the violation of a traffic regulation is negligence per se,...