Opinion
35983.
DECIDED JANUARY 31, 1956.
Damages. Before Judge Renfroe. Screven Superior Court. September 19, 1955.
Hilton Hilton, L. H. Hilton, for plaintiff in error.
Howard Hunter, W. C. Hawkins, contra.
The trial judge did not err in denying the motion for new trial for the reasons assigned in the opinion.
DECIDED JANUARY 31, 1956.
Patrick L. Collins filed an action in Screven Superior Court against W. E. Griffin for damages arising out of a collision between the plaintiff's automobile and a truck driven by Joseph Thames, an employee of the defendant. On trial of the case the evidence disclosed that on August 2, 1954, at about 6:30 in the morning the plaintiff was driving a 1951 Chevrolet automobile in a northwest direction on State Highway No. 21 when at a point approximately four miles northwest of Springfield, Georgia, Joseph Thames, the agent and employee of the defendant, while driving an International truck owned by the defendant, in a southwest direction attempted to pass a small truck driven in the same direction by Samuel Morris; that after having pulled from the right lane to pass Morris's truck, Thames was unable to return to it, and a head-on collision occurred between the automobile being driven by the plaintiff and the truck driven by Thames.
The plaintiff testified that he could not remember anything about the collision because of a head injury he received in the accident.
Cora Bell Morris, the wife of Samuel Morris, who was riding in the back of Morris's truck, testified in part: that Thames "wove" the truck in and out of the right-hand lane three times before he attempted to pass; that Thames had ample time to pull back into the right lane after the plaintiff's automobile came into sight; that she did not know the speed either of the plaintiff's automobile or of the truck driven by Thames.
Samuel Morris testified in part: that he did not see the collision but he saw the plaintiff put on brakes to his automobile; that he slowed his speed when he saw the plaintiff put on brakes; that another truck passed him just prior to the collision but had had ample time to go a "good piece" ahead of him before the collision occurred.
There was undisputed evidence that the collision occurred on the plaintiff's side of the highway, and that the plaintiff never left his side of the highway before it occurred.
Thames, the driver of the truck in the collision, testified: that he could not get back in the right-hand lane because the plaintiff was approaching at such a rate of speed and also because Morris had slowed his speed just as he began to pass him; that when he first saw the plaintiff's automobile it was approximately one-half mile from him; that his own speed was about forty-five miles per hour; that the plaintiff's speed was approximately seventy to seventy-five miles per hour.
David Bragg, the driver of the truck which passed Morris just prior to the collision, testified in part: that he saw the plaintiff's automobile and he estimated its speed to be approximately seventy to eighty miles per hour; that he had been driving a truck for about eight to ten years; that he had observed the speed of many automobiles in his work; that the plaintiff's automobile "was really taking out, `cause when he passed me, you could hear the top of it whistling. Naturally, when a car is passing you faster than you're going, it will take the wind and sound with it. It causes sort of a swooch as it goes by"; that he saw M. G. Arnsdorff take a bottle of whisky from the plaintiff's automobile and throw it in the woods near the highway.
M. G. Arnsdorff testified that he took a bottle of liquor from the plaintiff's automobile and threw it in the woods.
The jury returned a verdict for the defendant, and the plaintiff filed a motion for a new trial. The trial judge denied this motion, and the plaintiff excepts to that ruling.
1. The plaintiff's counsel insist that there was not sufficient evidence from which the jury could determine that the plaintiff's negligence was the proximate cause of the collision or that the plaintiff's negligence was greater than that of the defendant's agent.
The evidence disclosed that two of the defendant's witnesses testified that the plaintiff was driving at least 70 miles per hour. Thames, the driver of the defendant's truck, testified that one of the reasons that he was not able to return to the right-hand lane was because of the rapid speed at which the defendant's automobile was approaching him.
The plaintiff's counsel contends this testimony had little or no probative value because it was the opinions of non-expert witnesses and that they did not testify as to the facts upon which they based their conclusions. The witnesses gave sufficient facts upon which they based their opinions. Thames, the driver of the truck involved in the collision, stated that when he first saw the plaintiff's automobile it was about one-half mile away and before he could get back into the right-hand lane of the highway the plaintiff's automobile had hit the truck. David Bragg testified that he had been a truck driver for several years and had observed the speed of many automobiles. He further testified that the plaintiff's automobile made a whistling sound which indicated a fast rate of speed. Both witnesses had some experience in judging speed and they also had a reasonably good opportunity to observe the speed of the plaintiff's automobile and therefore their testimony was of probative value. Allen v. Hatchett, 91 Ga. App. 571 ( 86 S.E.2d 662); Harmon v. Givens, 88 Ga. App. 629 ( 77 S.E.2d 223); Thornton v. King, 81 Ga. App. 122 ( 58 S.E.2d 227).
Thames testified that one of the reasons he was unable to return to the right side of the highway was because of the excessive speed at which the plaintiff was driving. There was competent evidence from which the jury could find that the plaintiff was negligent and that his negligence not only contributed to but constituted the proximate cause of the collision resulting in his injuries. This is not one of those plain and indisputable cases in which reasonable men might not entertain opposing views as to whether the plaintiff was in the exercise of ordinary care for his own safety, or whether the plaintiff or the defendant's employee was guilty of the greater negligence. Howard v. Savannah Electric Co., 140 Ga. 482 ( 79 S.E. 112); Columbus R. Co. v. Berry, 142 Ga. 670 ( 83 S.E. 509); Larkin v. Andrews, 27 Ga. App. 685 ( 109 S.E. 518). The general grounds are without merit for the reasons assigned.
2. Special ground one of the amended motion for a new trial assigns as error the introduction in evidence of a "Seagrams 7" whisky bottle. This objection is without merit because similar evidence had been admitted prior to that in question. Both David Bragg and M. G. Arnsdorff testified that M. G. Arnsdorff had taken a whisky bottle from the plaintiff's automobile and had thrown it into the woods. Goolsby v. State, 147 Ga. 259 ( 93 S.E. 407); Reich v. State of Georgia, 63 Ga. 616; Woods v. State, 137 Ga. 85 ( 72 S.E. 908).
3. Special ground two contends that Annie Lee Moore, one of the jurors sitting on the jury, was related to the defendant within the prohibited degree. The plaintiff's counsel states that the relationship is by reason of the virtual adoption of the juror. Even though there are cases in which a child is allowed to inherit as an heir as the result of a virtual adoption, there is no legal relationship created by what is known as a virtual adoption. Rahn v. Hamilton, 144 Ga. 644 ( 87 S.E. 1061); Crawford v. Wilson, 139 Ga. 654 ( 78 S.E. 30, 44 L.R.A. (NS) 773). Furthermore one of the attorneys of record did not sign the affidavits to the effect that he did not know of the contended incompetence of the juror and therefore it must be presumed, when there is no explanation to the contrary, that the counsel who did not sign had knowledge of the contended incompetence. Brown v. Oattis, 55 Ga. 416 (1). This ground is without merit for the reasons assigned.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.