Xiong v. Lankford, A97A0683

• Decision Date: 25 March 1997
• Docket Number: No. A97A0683,A97A0683
• Citation: 485 S.E.2d 534,226 Ga.App. 126
• Parties: , 97 FCDR 1668 XIONG et al. v. LANKFORD.
• Court: Georgia Court of Appeals

Page 534

485 S.E.2d 534

226 Ga.App. 126, 97 FCDR 1668

XIONG et al. v. LANKFORD.

No. A97A0683.

Court of Appeals of Georgia.

March 25, 1997.

Reconsideration Denied April 9, 1997.

Graham G. McMurray, Atlanta, G. Clyde Dekle, III, Millen, for appellants.

Goodman, McGuffey, Aust & Lindsey, William P. Claxton, Joseph M. Maguire, Jr., Atlanta, for appellee.

RUFFIN, Judge.

Seu and Joua Yang Xiong, the parents of Roger Xiong, brought this wrongful death action against Warren Lankford, who was operating a motor vehicle that struck and killed Roger. The jury returned a verdict in favor of Lankford, and the Xiongs appeal. For reasons which follow, we affirm.

1. The Xiongs enumerate as error the trial court's denial of their motion for judgment notwithstanding the verdict. According to the Xiongs, a j.n.o.v. was mandated because Lankford was negligent in not looking where he was driving and in driving in excess of the posted speed limit at the time of the collision. We disagree.

"Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. As long as there is some evidence to support the verdict, the denial of [the Xiongs' motions] for ... new trial and j.n.o.v. will not be disturbed." (Citation and punctuation omitted.) Southeastern Security Ins. Co. v. Hotle, 222 Ga.App. 161, 162(1), 473 S.E.2d 256 (1996).

In this case, eyewitnesses testified that Roger, a five-year-old boy, was bent over in the roadway at least one foot from the curb, tying his shoe, prior to the impact. When Roger stood up, he was almost immediately struck by Lankford's vehicle. Eyewitness testimony further established that Roger was in the shadow of some overgrown brush from a vacant lot while he was tying his shoe, contributing to Lankford's inability to see Roger until impact. Similarly, Sergeant Anderson, the police officer who investigated the incident, testified that Lankford's view of Roger would have been obstructed by brush existing on a vacant lot close to where the impact occurred. Sergeant Anderson further testified that Lankford's speed at the time of the incident was 25 mph, the posted speed limit. At least one eyewitness also testified that, in his opinion, Lankford was not speeding.

Contrary to the Xiongs' contention, Thomas v. Kite, 206 Ga.App. 80, 424 S.E.2d 305 (1992), does not control. In Thomas, the defendant admitted she was not watching where she was going prior to impact, and the court specifically noted that there was no evidence to suggest that the incident was unavoidable. In the present case, Lankford testified that he maneuvered around cars parked on the right side of the roadway, that he reduced his speed when he observed children on the left side of the roadway, and that he was unable to see Roger until the time of impact. Lankford's inability to see Roger was corroborated by Sergeant Anderson and eyewitnesses, who testified that nearby shrubbery obstructed Lankford's vision of Roger. Additionally, there was testimony from three eyewitnesses that if they had been driving, they would have been unable to see Roger in time to avoid striking him.

Due to the conflict in the evidence regarding Lankford's alleged negligence, the trial court properly denied the Xiongs' motion for j.n.o.v. Even if Lankford was negligent to some degree, the jury was authorized to find in his favor. The jury could have concluded that: (1) Roger's negligence in stopping in the roadway and bending over his shoe just beyond a curve where shrubbery obstructed the view of oncoming traffic, or (2) his parents' negligence in permitting a five-year-old boy to walk home from school unsupervised by an adult equaled or exceeded that of Lankford's. OCGA § 51-11-7; see also Union Camp Corp. v. Helmy, 258 Ga. 263, 267, 367 S.E.2d 796 (1988).

2. In their third, fourth and fifth enumerations of error, the Xiongs assert the trial court erred in admitting opinion testimony of non-expert witnesses in response to hypothetical questions and in denying their motion for new trial on this ground. Specifically, the Xiongs argue that the eyewitnesses should not have been permitted to testify that, in their opinion, the accident was unavoidable. We disagree.

Under OCGA § 24-9-65, any witness may give his opinion provided a sufficient foundation for the opinion is laid. American Golf Corp. v. Manley, 222 Ga.App. 7, 9(3), 473 S.E.2d 161 (1996). "A witness in a position to know from his own experience what occurs in the ordinary course of affairs in a given situation should be allowed to testify, the credit to be given it being left to the jury." Witt v. Robbins, 163 Ga.App. 182, 184(2), 292 S.E.2d 894 (1982). " '[T]he status of the witness[es] as lay or expert would go, not to admissibility, but to credibility.' [Cit.]" Manley, supra at 9(3), 473 S.E.2d 161.

Contrary to the Xiongs' argument, we find that Eric Waller, Shannon Allen and Jeannie Harvey all provided a sufficient basis for their opinions. These witnesses testified that they were very familiar with the area and had driven the same route as Lankford on several occasions.

Waller testified that he had a good view of the road and saw a little boy in the roadway at a point where the road curved. He simultaneously saw Lankford's vehicle approximately five feet from the boy and traveling toward the boy. He also identified the shrubbery that obscured Lankford's view of the boy and testified that Lankford's vehicle was traveling only 25 mph to 30 mph. Waller was then asked the following question: "Mr. Waller, I want you to assume that you were driving...