Tidwell v. Tidwell, 35664

• Decision Date: 18 May 1955
• Docket Number: No. 35664,No. 1,35664,1
• Citation: 87 S.E.2d 657,92 Ga.App. 54
• Parties: E. K. TIDWELL v. H. A. TIDWELL et al
• Court: Georgia Court of Appeals

Page 657

87 S.E.2d 657

92 Ga.App. 54

E. K. TIDWELL v. H. A. TIDWELL et al.

No. 35664.

Court of Appeals of Georgia, Division No. 1.

May 18, 1955.

Syllabus by the Court.

The verdict was supported by the evidence, and none of the special grounds of the motion for a new trial shows error.

Eddie K. Tidwell brought suit in Monroe Superior Court against H. A. Tidwell and James B. Tharpe.

The facts of the case necessary to relate are succintly stated as follows: The action was one for damages, the plaintiff seeking to recover for personal injuries alleged to have been caused by the gross negligence of the defendant Tidwell and of the defendant Tharpe. The plaintiff alleged that he was riding as a guest in the defendant Tidwell's automobile, and no facts were alleged to show that he was not riding in this capacity. The jury returned a verdict against the defendant Tharpe and in favor of the defendant Tidwell. The plaintiff filed a motion for new trial on the general grounds, and, by amendment, on six special grounds. The court denied the motion, and error is assigned on that ruling.

The evidence disclosed that, riding in the Tidwell automobile in addition to the driver, H. A. Tidwell, were Robert C. Fountain, Lewis H. Watkins, Melvin W. Wood, and the plaintiff, Eddie K. Tidwell. The defendant Tharpe filed an answer, but did not appear as a witness.

The testimony of the witnesses who were in the Tidwell automobile was without major contradiction. The evidence showed that the Tidwell automobile was traveling south toward Warner Robins on Pio Nono by-pass, near Macon, at approximately 6 a. m. on June 30, 1953, at a speed variously estimated by the witnesses to be between 35 and 60 miles per hour.

The Tidwell automobile was going around a gradual curve to the right and there were no automobiles traveling in the same direction in front or behind it. The sun had come up and the visibility was good. The station wagon driven by the defendant Tharpe was the only other automobile in the vicinity, and it was traveling in the opposite direction, at a speed variously estimated as between 35 and 55 miles per hour.

When H. A. Tidwell first saw the station wagon, it was about 300 yards away, and it was on its own side of the road. When the vehicles were about 100 yards apart, the station wagon began to come over onto Tidwell's side of the highway. As the station wagon moved over onto Tidwell's side of the highway, and as the vehicles were meeting head-on, Wood hollowed, 'Look out,' and the defendant Tidwell said that he was going to hold his side of the highway. The station wagon continued to move farther and farther onto Tidwell's side of the road, and finally got completely on its left and on Tidwell's right side of the highway. When the station wagon was first completely on Tidwell's side, the vehicles were about 75 yards apart.

Tidwell blew his horn as the station wagon began leaving its side of the highway crossing over onto his. There was some conflict in the evidence as to other actions taken by Tidwell to prevent the collision. Watkins testified that Tidwell immediately pulled the automobile off the paved portion of the road and onto the right shoulder. The plaintiff testified that the station wagon seemed to be headed for the ditch on the right. The defendant Tidwell testified that he remained on the pavement, on his right side of the highway, and that he put on brakes and reduced his speed to 15 or 20 miles per hour when the impact occurred. Fountain and Wood thought that he reduced his speed only slightly.

When the vehicles were approximately 25 feet or less apart, Tidwell jerked his automobile to the left. The left front of Tidwell's automobile was slightly across the center line when the automobile hit, and the right front of Tharpe's automobile was on its own side at the moment of impact.

W. B. Mitchell, Forsyth, for plaintiff in error.

H. D. Sosebee, Forsyth, Harris, Russell, Weaver & Watkins, Bell & Bell, John D. Comer, Macon, for defendants in error.

QUILLIAN, Judge.

The plaintiff in error is referred to in this opinion as the plaintiff, and the defendant in error as the defendant.

1. The evidence, though conflicting, was sufficient to sustain the verdict and the general grounds are without merit.

2. Special ground 1 of the amended motion for new trial complains of the following charge: 'When witnesses appear and testify they are presumed to speak the truth and are to be believed by the jury unless impeached in some manner provided by law or otherwise discredited in your judgment.' The plaintiff contends that this charge was confusing, misleading, and not correct as an abstract principle of law.

The identical charge was approved as being correct in Gillespie v. State, 37 Ga.App. 507, 140 S.E. 791. This ground is without merit as to the reasons assigned. Byrd v. Grace, 43 Ga.App. 255, 158 S.E. 467; Gibson v. State, 42 Ga.App. 285, 155 S.E. 922.

3. Special ground 2 assigns as error the following charge: 'A witness may be impeached by disproving the facts testified to by him, or by proof of contradictory statements previously made by him of matters relevant to his testimony and to the case, or by proof of general bad character. When thus impeached, or sought to be, in either of the latter instances, he may be sustained by proof of general good character * * *.'

The plaintiff contends that it was error to specify, as one mode of impeachment, evidence of general bad character, where no evidence of the general bad character of any witness had been introduced upon trial of the case.

'It would not, perhaps, be erroneous in any case where the testimony was conflicting, for the judge to charge that a witness might be impeached by disproving the facts testified to by him. Civ.Code 1895, § 5291; Middle Georgia & A. Ry. Co. v. Barnett, 104 Ga. 582, 30 S.E. 771; Chapman v. State, 109 Ga. 157, 163, 34 S.E. 369 But it is improper for the judge to charge on the subject of impeachment by proof of general bad character, unless some attempt has been made to thus impeach a witness. Such an error, however, would not generally be a sufficient reason for the reversal of a judgment.' Southern Ry. Co. v. O'Bryan, 119 Ga. 147, 150, 45 S.E. 1000, 1001.

Therefore, whether or not there was any evidence as to the general bad character of the plaintiff, it did not in this case constitute a reversible error for the judge to charge on the subject of impeachment by proof of general bad character. Cotton v. State, 201 Ga. 285, 39 S.E.2d 530; Scarboro v. State, 24 Ga.App. 27, 99 S.E. 637.

4. Special ground 3 complains that the court instructed the jury: 'Gross negligence is equivalent to failure to exercise even a slight degree of care. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care. It is very great negligence or the absence of slight diligence, or the want of even...