Powers v. Pate., 107 Ga. App. 25, 129 S.E.2d 193 (1962)

Status: DECIDED

Docket Number: 39503

Parts: Action for damages. Colquitt Superior Court. Be...

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George A. Horkan, Jr., Divine & Busbee, William T. Divine, Jr., contra.Emory M. Hiers, Whelchel & Whelchel, Hoyt H. Whelchel, Jr., for plaintiff in error.

The court did not err in overruling the motion for new trial.

Max Lamar Powers filed a suit against Leonard Homer Pate and Ralph S. Pate to recover damages on account of personal injuries and damage to his motorcycle allegedly sustained as a result of a collision between a motorcycle being driven by him and a pickup truck being driven by Leonard Homer Pate. By an amendment to his petition he struck the name of Ralph S. Pate as a defendant. Succinctly, the evidence shows that the collision occurred in the intersection of Georgia State Highway No. 111 and Georgia State Highway No. 202. About 6:30 p.m., on August 19, 1960, plaintiff was proceeding in an easterly direction on Highway 111, and immediately before the collision he was following a pickup truck. The defendant was driving a pickup truck in a southerly direction on Highway 202. The evidence showed that the following signs were located on the right side of Highway 202, facing southbound traffic at or near the intersection in question: "Slow," "Dangerous Intersection," "Stop Ahead," and "Stop." The defendant testified that he was familiar with the intersection, and as he brought his truck to a stop before entering the intersection, he saw a pickup truck approaching the intersection from his right, and, upon entering the intersection, the driver of the approaching pickup truck began making a left turn. But instead of proceeding to the center of the intersection, turning and passing on the defendant's left, the driver of the approaching pickup truck took a short cut and passed on the defendant's right. The defendant testified that he never saw the plaintiff until the moment of the collision; that he had seen only the approaching pickup truck; that he had looked and did not see any traffic behind the approaching truck; and that he could have seen an automobile behind the truck if there had been one behind it.

Plaintiff testified that he saw the defendant's truck approaching the intersection and it appeared as though it was going to be brought to a stop; that he (plaintiff) reduced his speed "to about 5 to 10" miles per hour as he entered the intersection; that he reduced his speed until he was traveling about 5 to 6 miles per hour when he reached a point one-half to two-thirds across the intersection where the collision occurred; that when he was one-half way across the intersection he saw the defendant's truck for the second time; that prior to his entering the intersection the truck which he was following made a short-cut left turn and blocked his view of the defendant's truck; and that the defendant's truck came into the intersection so suddenly he "didn't have time to avoid it or stop or move or anything."

There was evidence to show the extent of the plaintiff's personal injuries and the damage to his motorcycle. The jury returned a verdict against Leonard Homer Pate in the amount of $800. The plaintiff filed a motion for new trial on the usual general grounds and, by amendment, several special grounds were added. The court overruled the motion and to this ruling the plaintiff excepts and assigns error.

1. "Questions of negligence, diligence, contributory negligence, and proximate cause are peculiarly matters for the jury, and a court should not take the place of the jury in solving them, except in plain and indisputable cases." Eubanks v. Mullis, 103 Ga. App. 146 (118 SE2d 724), and cases cited therein. ". . . it has been held many times by the appellate courts that what amounts to negligence, contributory or comparative negligence, proximate cause, etc., are ordinarily questions for the jury under appropriate instructions, and such questions will not be determined by the court as a matter of law except in plain and undisputed cases." Callaway v. Pickard, 87 Ga. App. 837, 75 SE2d 331; see Moore v. Sears, Roebuck & Co., 105 Ga. App. 660, 125 SE2d 65). In the instant case we are of the opinion that the question of comparative negligence was involved. While it is true that there were warning signs and a stop sign when defendant approached the intersection, the uncontradicted evidence shows that he did stop before entering it. Therefore, the defendant did not violate any stop sign which had been placed at the intersection for the control of traffic. Teague v. Keith, 214 Ga. 853 (108 SE2d 489). After having stopped, it was a question for the jury as to whether he was negligent in entering the intersection. The jury found for the plaintiff, and therefore, it is obvious that they found that the defendant was negligent in some degree. On the other hand, even if the plaintiff had the right of way at the intersection, "His right of way and right to assume the absence of negligence by others do not entitle him to drive blindly or recklessly across an intersection, especially one which might be termed a 'blind intersection,' without regard to the conditions and consequences. It is his own duty to exercise ordinary care in being alert to observe vehicles approaching the crossing, and to exercise ordinary care in the control, speed, and movements of his car to avoid a collision, after he sees or by ordinary diligence could have seen that one is threatened or imminent." Eddleman v. Askew, 93 Ga. App. 329 (92 SE2d 38); Hill v. State, 201 Ga. 300 (6) (39 SE2d 675). Cf. Georgia Power Co. v. Gillespie, 48 Ga. App. 688 (8) (173 SE 755), and Western &c. R. Co. v. Hughes, 37 Ga. App. 771 (6) (142 SE 185). See also Green, Ga. Law of Evidence, 86, p. 202. However, the plaintiff's objection does not reach this question as it relates only to the identification of the photographs. The defendant testified that the photographs were taken in his presence by a named individual on a certain date. He described how and in what position the photographs were taken. We are of the opinion that the pictures were sufficiently identified so as to authorize their admission as against the objection that they had not been sufficiently identified. Special ground 10 of the motion is without merit.

3. Movant contends that it was error to charge the contents of Code Ann. 68-1650 (a) and (b) without subsection (c), and particularly subsection (d). Clearly, subsection (c) had no application to the facts of the case, and the court did nor err in failing to charge this subsection. Subsection (d) provides: "The right of way rules declared in subdivisions (a) and (b) are modified at through highways and otherwise as hereinafter stated in sections 68-1651 through 68-1653." Had the court charged this subsection it would have had no meaning to the jury without charging and sufficiently identifying the limiting Code sections referred to in Code Ann. 68-1650 (d). The court did charge the contents of these limiting Code sections. (In fact, in another special ground of his motion, movant contends that the court erred in charging one of these modifying Code sections.) In reviewing the charge as a whole, we find no harmful error in the court's failure to charge subsection (d) of Code Ann. 68-1650. Special grounds 4 and 5 of the motion for new trial are without merit.

5. Special ground 9 shows no harmful error for any reason assigned.

Judgment affirmed. Nichols, P. J., and Jordan, J., concur.