Opinion
37460.
DECIDED JANUARY 29, 1959.
Action for damages. Fulton Superior Court. Before Judge Moore. October 7, 1958.
John S. McClelland, Grady E. Rozar, for plaintiff in error.
T. J. Long, Ben Weinberg, Jr., contra.
The court did not err in directing a verdict for the defendants because the circumstantial evidence relied on to show liability was as consistent with the hypothesis of nonliability as it was with liability.
DECIDED JANUARY 29, 1959.
Mrs. C. D. Collins sued P. A. Phillips and J. W. Nash to recover damages for the alleged tortious death of her minor son. The petition alleged: "3. That on or about the 30th day of May, 1956, at approximately 10:25 a. m. petitioner's minor son, Curtis David Collins, Jr., was driving a 1954 Chevrolet truck north on U.S. Highway #341 toward Atlanta, Georgia, being at said time and place approximately two and one-half miles north of Perry, Georgia, not exceeding 45 miles per hour. 5. That a 1954 Reo tractor-trailer truck owned by defendant, J. W. Nash, but being driven at said time and place by the defendant, P. A. Phillips, was also proceeding north on U.S. Highway #341 toward Atlanta, Georgia, approximately two and one-half miles north of Perry, Georgia, immediately in front of the truck being driven by petitioner's son, Curtis David Collins, Jr. 6. In operating the truck at that time and place, and at all times hereinafter mentioned, the defendant P. A. Phillips, was acting within the scope of his employment with the defendant, J. W. Nash. 7. At the time and place aforesaid petitioner's son decided to go around the truck driven by defendant, P. A. Phillips, who was preceding him immediately ahead. Petitioner's son blew the truck's horn and proceeded to go around the truck driven by defendant, P. A. Phillips. 8. At or about the exact time petitioner's son was attempting to go around the truck driven by defendant P. A. Phillips, the said defendant, P. A. Phillips, suddenly and without any warning pulled over on the left side of said highway directly in front of the truck driven by petitioner's son, and at the same time drastically reduced the speed of the truck that he, the defendant, P. A. Phillips, was driving, resulting in petitioner's son running into and against the rear of the truck driven by defendant, P. A. Phillips, killing petitioner's son instantly. 13. As a direct and proximate result of the following acts of negligence your petitioner's son was killed: (a) In the failure to yield the right of way: (b) In the failure to exercise ordinary care in driving said truck on the wrong side of the highway which is negligence per se and in violation of the law; See Section 68-1635 of the Code of Georgia. 'Except when overtaking and passing on the right is permitted, the driver of an overtaken vehicle shall give way to the right in favor of the overtaking vehicle on audible signal and shall not increase the speed of his vehicle until completely passed by the overtaking vehicle.' (c) That the defendant, P. A. Phillips, was negligent in suddenly and without any warning drastically reducing the speed of his truck in front of the truck being driven by petitioner's son at the time when he had pulled the left wheels of his truck across the center lines of said highway, making it impossible for petitioner's son to pass and at a time when he knew that petitioner's son was in the act of passing. That the negligence of the defendants was the direct and proximate cause of the injury and damage to petitioner as aforesaid." The court directed a verdict for the defendants and the plaintiff excepts to the denial of her motion for new trial on the grounds that the court erred in directing the verdict for the following reasons: "(a) There were conflicts in the evidence, and that introduced, with all reasonable deductions and inferences therefrom, did not demand the verdict directed; (b) There were issues of fact under the evidence which only the jury had authority to resolve; (c) There was evidence which would have authorized the jury to find a verdict for movant; (d) There were issues of fact which would have been submitted to a jury, and there was evidence introduced which would have authorized the jury to find a verdict different from that directed; (e) Movant was entitled by the pleadings and evidence as a matter of law to have the jury decide and pass upon all issues as to questions of negligence, diligence, and proximate cause; (f) Movant was entitled by the pleadings and evidence as a matter of law to have submitted to the jury and have it pass upon and decide as to all issues whether the evidence preponderated in favor of the plaintiff's theory, rather than to some other reasonable theory, and whether the defendants were negligent in any of the ways alleged by plaintiff, and whether such negligence was the proximate cause of the death of plaintiff's son; (g) Movant was entitled by the evidence and pleadings as a matter of law to have the jury decide and pass upon all issues of contributory negligence in that if decedent was killed on account of defendant's fault or negligence, plaintiff could recover, and if both decedent and defendants were negligent, and decedent could not have avoided the consequences to himself of defendant's negligence by exercise of ordinary care, plaintiff might recover, but damages should be diminished by the jury in proportion to amount of default attributable to decedent; (h) Movant was entitled by the evidence and pleadings as a matter of law to have submitted to the jury and have it pass upon and decide all issues as to whether or not defendants were confronted with a sudden peril or emergency, not created by his own, and whether or not defendants exercised ordinary diligence under all the facts and circumstances surrounding the situation."
There follows a summary of the testimony of the various witnesses touching on the question of the negligence of the defendants and the proximate cause of the death of the plaintiff's son: C. D. Collins testified in behalf of the plaintiff, as follows: C. D. Collins, the father of the deceased, went to Perry, Georgia, on May 30, 1956, but did not see the vehicles at the scene of the collision, the witness stating that he saw his truck parked in front of the Chevrolet place in Perry, and also saw the other truck in Perry. He stated that he did not see any skid marks at the scene other than those shown on the plaintiff's Exhibit No. 5, a photograph, and that the skid marks shown thereon led "to the left of the center line, and they looked as if they skidded about one hundred feet." The witness stated that he did not witness the collision and did not get down to Perry from Atlanta until later in the day upon which the accident occurred.
C. D. Leverett testified in behalf of the plaintiff: That he was employed by the Department of Public Safety and assigned to the Georgia Bureau of Investigation, being stationed in Perry. On May 30, 1956, he overheard a radio report of the collision in question over a police radio in his car. He went to the scene of the collision, but did not make any investigation, this witness handling the traffic at the scene and also taking some pictures at the scene. He stated that when he got to the scene of the collision a uniformed officer was already there and a wrecker was also at the scene, hooked to the front end of the Collins truck. At that time the Collins truck had not been moved and was then six or seven feet to the right of the center line of the highway for northbound traffic. There was debris consisting of glass and "stuff like that all around"; the tractor-trailer truck was somewhat ahead of the front end of the Collins truck and about equally distant from the center line of the highway in the lane for northbound travel. The skid marks which appear in the photographs were present at the scene and led to the back end of the Collins truck. There was a yellow line to the right of the center line at the scene in the lane for northbound traffic.
Paul A. Phillips: This witness, one of the defendants in error, testified as follows: He was driving the leading vehicle in a northerly direction, coming downgrade at a speed of approximately fifty miles an hour toward a bridge, the surface of which was rough; he further testified that he broke the speed of his vehicle so that as he approached the bridge it was traveling thirty to thirty-five miles an hour, there being oncoming traffic on the bridge and two parked cars headed in a northerly direction on the shoulder of the roadway just north of the bridge. The reason the witness slowed to approximately thirty-five miles an hour was to let the oncoming traffic get off the bridge before he entered it. After he entered the bridge the witness heard decedent blow his horn twice, but couldn't get out of the way for the reason that the two parked cars on the right side of the roadway would not permit him to pull to the right and oncoming southbound traffic occupied the left side of the roadway. As he passed over the bridge and passed the two parked cars, the left inside wheels of the tractor were on the center line. This was done in order that, had an occupant of the parked cars opened the door as he was passing, the likelihood of a collision would be lessened. When the witness passed the parked cars he pulled back completely onto the right side of the road. The farthest the left outside tire of the tractor he was driving extended over the center line was approximately twenty inches. The witness further stated that the collision occurred past the end of the last car parked on the side of the road and at that time there were southbound automobiles at the point, one of the cars being even with the front of the tractor; the shoulder of the roadway on the right at that point consisted of a dropoff of approximately twenty feet. This witness testified that when the vehicles came to rest after the collision the Chevrolet truck was about two feet behind the rear of the truck he was driving; that the truck driven by the witness did not skid when the witness changed gears; that the tractor and trailer were on the right side of the roadway when the collision occurred, involving the front of the Chevrolet truck and the rear of the trailer.
J. E. Smith testified on behalf of the defendants. Mr. Smith, employed as an engineer in the State Highway Department and residing in Perry testified: That on the morning of May 30, 1956, he witnessed the collision involved here at a point just north of Bay Creek Bridge just north of Perry on U.S. Highway #341. He was accompanied by one J. C. Collins, a Division Engineer and they were inspecting the roadway at the bridge. They had parked the two automobiles in which they arrived at the scene on the right shoulder of the roadway north of the bridge. They were standing on the right side of the roadway approximately one hundred feet north of the bridge and were facing toward the bridge; at this time there was northbound traffic consisting of two trucks and some automobiles in front of them, as well as southbound traffic. The witness first saw the truck driven by the decedent as it was approaching the bridge coming downhill, at which time the traffic ahead of it was moving off the bridge. The decedent's vehicle was traveling faster than the other northbound traffic and "rammed the larger truck in the rear there, on the right side of the road going north." The collision occurred approximately one hundred fifty feet north of the bridge. At the time of impact there were cars "flowing on the other side. Whether there was one that instant there or not, I wouldn't say . . . the traffic just slowed up and this boy come off the hill and he was driving at an excessive speed to what they were moving there and he just naturally overtook them, and consequently that was the way he selected to do it, I reckon." The witness stated that he did not see any skid marks before the impact on the highway, but after the impact he did observe marks on the pavement. The witness further stated that as the first truck was passing the bridge and the other truck approaching the bridge he heard a horn blow, but the witness did not know whether this horn was blow by one of the trucks or by other traffic. The vehicles came to stop on the right side of the roadway, and as soon as the "metal and stuff" was cleared off the roadway "the other traffic was using the other lane there." The witness estimated the speed of the tractor-trailer truck at about twenty-five miles an hour or less, and the speed of the Chevrolet truck at fifty to sixty miles an hour or less.
There are two predominant hypotheses in this case on the two vital questions, whether the defendants were negligent and whether if they were the negligence was the proximate cause of the death. One is that P. A. Phillips drove his truck about twenty inches on the wrong side of the highway and slowed the speed of the truck to such an extent as to cause the deceased to run into the rear of the leading vehicle. The second is that the deceased attempted to pass the leading vehicle while there was oncoming traffic in the opposite lane of traffic and did not have time to pass and attempted to cut back into his own lane of traffic. The evidence is entirely circumstantial, and assuming for the sake or argument that the two theories are equally reasonable, which we do not concede to be true, the established rule is that where circumstantial evidence points equally to two opposing theories, one consistent with liability and the other not, the party having the burden of proof fails to show a case of liability. Camp v. Emory University, 95 Ga. App. 442 ( 98 S.E.2d 66) and cases cited.
Some further observations seem to be pertinent. The speed of the leading vehicle was not drastically reduced. The collision occurred on the right-hand side of the highway. It cannot be concluded with any degree of certainty which truck made the skid marks on the road. In crossing the bridge and passing the cars parked on the shoulder and close to the pavement the defendant Phillips allowed the left tire of the truck to go twenty inches over into the wrong lane but the evidence shows that the collision occurred north of the point where these cars were parked. A most significant fact is that at the time of the collision the undisputed evidence shows that there was traffic flowing in the opposite direction and that one vehicle so traveling was alongside the Nash truck, driven by Phillips.
The evidence did not authorize a finding that the defendants were guilty of negligence constituting the proximate cause of the death.
The court did not err in directing a verdict for the defendants.
Judgment affirmed. Nichols, J., concurs. Quillian, J., concurs in the judgment.