Opinion
49595.
SUBMITTED SEPTEMBER 5, 1974.
DECIDED SEPTEMBER 20, 1974.
Action for damages. Butts Superior Court. Before Judge Sosebee.
E. T. Hendon, Jr., for appellant. Jones, Cork, Miller Benton, Wallace Miller, Jr., Harold E. Martin, for appellee.
In this action for personal injury arising from a rearend collision (defendant's vehicle striking plaintiff's from rear), the jury returned a verdict for the defendant. Appealing from the judgment entered thereon, plaintiff assigns as error the trial court's denial of her motion for new trial. Plaintiff contends solely that the preponderance of the evidence against the defendant was so great as to suggest jury bias or gross misapprehension and as to shock the understanding and moral sense, Brown v. Nutter, 125 Ga. App. 449 (2) ( 188 S.E.2d 133), and that she was therefore entitled to a new trial. Held:
If there is any evidence to support the verdict of the jury, this court will not disturb the verdict. "This ground in the motion for new trial is addressed to the discretion of the trial judge, upon whom is imposed the duty of being satisfied with a verdict before he approves it." Hargett v. State, 24 Ga. App. 357 ( 100 S.E. 765); Bell Bros. v. Aiken, 1 Ga. App. 36 ( 57 S.E. 1001). See also Car-Perk Services, Inc. v. Carr, 219 Ga. 322 ( 132 S.E.2d 780); Middleton v. Waters, 205 Ga. 847 (5) ( 55 S.E.2d 359). "After a jury verdict has been returned the evidence is construed in its light most favorable to the prevailing party, for every presumption and inference is in favor of the verdict." Brown v. Nutter, 125 Ga. App. 449 (1), supra; Brown v. Wingard, 122 Ga. App. 544 (177 S.E.2d. 797).
The evidence of record construed in this light is sufficient to warrant a jury conclusion that plaintiff was negligent in the operation of her vehicle in that she was traveling at night at a high rate of speed (between 55 and 70 miles per hour); that she slowed suddenly to make a right hand turn onto an intersecting road; that she did not signal her intention of doing so sufficiently in advance to warn defendant, who was following her; and that her vehicle upon braking skidded to the right then to the left causing it to be astraddle the centerline at the time of impact.
"All drivers of vehicles using the highways are held to the exercise of due care. A leading vehicle has no absolute legal opposition superior to that of one following. Each driver must exercise ordinary care in the situation in which he finds himself. The driver of the leading vehicle must exercise ordinary care not to stop, slow up, nor swerve from his course without adequate warning to following vehicles of his intention so to do. The driver of the following vehicle, in his turn, must exercise ordinary care to avoid collision with vehicles, both those in front and those behind him." Cardell v. Tennessee Electric Power Co., 79 F.2d 934, 936 (5th Cir. 1935). "The mere fact that one vehicle is struck in its rear, while another is not struck, is not in and of itself sufficient to fix liability on the driver of either vehicle." Davenport v. Robinson, 109 Ga. App. 753, 755 ( 137 S.E.2d 380); Hay v. Carter, 94 Ga. App. 382, 384 ( 94 S.E.2d 755). "All the facts and circumstances are to be taken into consideration in making a determination as to where the liability lies." Brown v. Nutter, 125 Ga. App. 449, 450, supra; Harper v. Plunkett, 122 Ga. App. 63 ( 176 S.E.2d 187).
The trial judge covered these principles in his charge to the jury as well as the law of comparative negligence, to which plaintiff did not object, and which was appropriate under the evidence. See Holland v. Watson, 118 Ga. App. 468 (2) ( 164 S.E.2d 343); Flanigan v. Reville, 107 Ga. App. 382 ( 130 S.E.2d 258).
That the negligence of the plaintiff under those circumstances (as leading vehicle in a rear-end collision) presents a question for the jury is found in Roesler v. Etheridge, 125 Ga. App. 358 ( 187 S.E.2d 572); Sears, Roebuck Co. v. Kinzler, 118 Ga. App. 682 ( 164 S.E.2d 872); O'Neil v. Moore, 118 Ga. App. 424 (3) ( 164 S.E.2d 328); Pfeifer v. Yellow Cab Co. of Atlanta, 88 Ga. App. 221 ( 76 S.E.2d 225).
The jury was authorized under the law and the evidence to find for the defendant, even though the defendant may have been negligent also. We find evidence in the record to support the verdict and no abuse of discretion in the trial court's denial of plaintiff's motion for new trial.
Judgment affirmed. Deen and Stolz, JJ., concur.