Vaughn v. American Freight System, Inc., 65101
| Decision Date | 30 November 1982 |
| Docket Number | No. 65101,65101 |
| Citation | 298 S.E.2d 284,164 Ga.App. 786 |
| Court | Georgia Court of Appeals |
| Parties | VAUGHN v. AMERICAN FREIGHT SYSTEM INC., et al. |
Jack Dorsey, Atlanta, for appellant.
David K. Whatley, Atlanta, for appellees.
The appellant brought this action for damages allegedly sustained when he was struck by a truck owned by appellee American Freight System, Inc., and insured by appellee American Casualty Company. The appellant testified that as he walked in front of the truck, which was either barely moving or had stopped, it suddenly and without warning leaped forward and hit him. The operator of the truck, an employee of American Freight, though available, was not called as a witness. Among other things, the appellant contends that the trial court erred in overruling his motion for a new trial on the general grounds.
Held:
1. "[T]he evidence must be construed most strongly in favor of the prevailing party, and the question to determine is as to whether the judgment, under such construction of the evidence, should be upheld or overturned." Alexander v. Kendrick, 134 Ga.App. 249, 213 S.E.2d 911 (1975). Our review of the record and transcript reveals that the evidence supports the jury's verdict. The only possible factual basis for recovery is found in the testimony of the appellant referred to above. The jury was authorized to find from the evidence presented either that the driver was not negligent or that the appellant was barred by his own negligence from any recovery.
2. The appellant contends that the trial court erred in denying his objection to comments made by appellees' counsel during closing argument regarding appellant's failure to call the operator of the truck as a witness. Thompson v. Colter, 242 Ga. 784(3), 251 S.E.2d 526 (1979). It is clear from the record that the witness was accessible and he was in fact present at trial, having been subpoenaed by the appellant. This enumeration of error is without merit.
3. Next, the appellant contends that the trial court erred in failing to charge the jury on the theory of res ipsa loquitur. The elements of the doctrine are: "(1) injury of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused...
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...it must not have been due to any voluntary action or contribution on the part of the plaintiff.' [Cit.]" Vaughn v. American Freight System, 164 Ga.App. 786(3), 298 S.E.2d 284 (1982). Through the depositions of several of its personnel familiar with the AGTS, Westinghouse presented evidence ......
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