Whitfield v. Wheeler

• Decision Date: 23 April 1948
• Docket Number: No. 31957.,31957.
• Citation: 47 S.E.2d 658
• Parties: WHITFIELD. v. WHEELER.
• Court: Georgia Court of Appeals

47 S.E.2d 658

WHITFIELD.

v.WHEELER.

No. 31957.

Court of Appeals of Georgia, Division No. 2.

April 23, 1948.

Syllabus by the Court

1. Although the evidence might authorize a different verdict, where there is enough to support the verdict found, the judgment of the trial court refusing a new trial on the general grounds will not be disturbed. See Code § 70-202 and annotations under catchwords "Any evidence" and "Approval."

2. There are no errors of law shown in the excerpts from the court's charge complained of in the amended motion for new trial.

Error from Superior Court, Fulton County; Frank A. Hooper, Judge.

Action by Robert A. Whitfield against C. W. Wheeler for injuries sustained in automobile collision. There was a judgment for defendant, and the plaintiff brings error.

Judgment affirmed.

Plaintiff in error, Robert A. Whitfield, hereinafter referred to as plaintiff, brought his petition against defendant in error, C. W. Wheeler, hereinafter referred to as defendant, in the Superior Court of Fulton County, alleging that he had been injured and damaged by the defendant in the sum of $5000. The petition alleges substantially that on or about the 25th day of August, 1946, he was riding as a guest in an automobile belonging to the defendant and operated by the defendant and that the plaintiff did not have any control nor direction, nor right to control nor direct the operation of said automobile; that Peachtree Road is a public thoroughfare and highway in Fulton County, running in an approximate north and south direction and is a hard surfaced, smoothly paved highway; that on the 25th day of August, 1946, at about 10:30 o'clock P.M. the plaintiff was sitting in the back seat of the said automobile operated by the defendant, proceeding north on Peachtree Road and the defendant, without any warning operated the said automobile onto the west or left side of said Peachtree Road, in a direction in which he was traveling directly into the front end of an automobile proceeding in the opposite direction, operated by David Aldrich; that when the said automobile in which he was riding and which was being operated by the defendant, ran directly into the front end of the automobile operated by Aldrich, that it did so with great force and violence, seriously, severely and permanently injuring the plaintiff; that Peachtree Road at the point of collision was approximately sixty feet wide and that the center of the highway is marked by a white line and that the defendant was approximately eight or ten feet west of this white line down the center of said highway.

By amendment plaintiff charged defendant with having operated said automobile at the time and place with tires that were so worn and slick as to cause the said automobile to skid and slide on the wet pavement when the defendant applied his brakes on said car.

The defendant filed an answer to the plaintiff's petition in which he denied all the material allegations of the petition and further answering the defendant said that at the time mentioned in the petition that he was driving his automobile in a careful manner and was not negligent in any manner in which he was operating his car. Defendant further said that if the plaintiff was injured, he was not injured through any negligence on the part of this defendant.

The jury was authorized to find from the evidence facts as follows: that the plaintiff was riding in the rear seat of the automobile driven by the defendant as the guest and that the collision occurred on the 25th day of August, 1946, at about 10:30 or 11 o'clock P.M. on Peachtree Road at a point near the Pig'n Whistle and on a curve; that on this night it had been raining very hard, but just a few minutes before the collision the rain had slackened and it was misty, the pavement was wet and the defendant was traveling north on Peachtree Road in Fulton County and was at a point near the Pig'n Whistle;that there is an entrance and an exit to the Pig'n Whistle which is located on the right side of Peachtree Road going north; that at the time of this collision the defendant was operating his automobile at a speed of twenty-five to thirty miles per hour; that he was on his right side of the highway; that a car was pulling out from the Pig'n Whistle and the defendant pulled his car to the left in order to give this car more room; that the defendant observed the car approaching from the north on Peachtree Road and as he pulled his car to the left he unconsciously applied his...