Opinion
42516.
ARGUED JANUARY 10, 1967.
DECIDED MAY 18, 1967. REHEARING DENIED JUNE 9, 1967.
Action for damages. Dougherty Superior Court. Before Judge Sabados.
Perry, Walters, Langstaff Lippett, Jesse W. Walters, for appellant.
Smith, Gardner, Kelley Wiggins, Peter Zach Geer, Cook Palmour, A. Cecil Palmour, for appellee.
1. The grounds of the motion for a judgment notwithstanding the verdict were not sufficient to present any question as to whether the evidence demanded a verdict in favor of the movant, and the trial court did not err in overruling it.
2. The trial court did not err in submitting to the jury an issue respecting certain alleged grounds of negligence of the defendant, nor in instructing the jury on the law with respect thereto, even though the plaintiff's side of the issue was supported solely by negative testimony while the defendant's side was supported by positive evidence that the defendant was not negligent in the respects alleged.
3. In the absence of a timely written request for fuller and more complete instructions defining a "business district" the trial court did not err in giving to the jury the statutory definition embodied in Code Ann. § 68-1504 (5) (a), and in submitting to the jury the question of whether the locale of the collision was or was not within a "business district" as thus defined.
4. The evidence authorized the verdict.
ARGUED JANUARY 10, 1967 — DECIDED MAY 18, 1967 — REHEARING DENIED JUNE 9, 1967 — CERT. APPLIED FOR.
Patricia Hyde filed suit in the Superior Court of Dougherty County against Crosby Aeromarine, Inc., a nonresident corporation. In her petition she sought to recover damages in the amount of $121,781.40, as the full value of the life of her husband, Floyd Hyde, who died as the result of a collision between his truck and a tractor trailer truck of the defendant which was at the time parked on North Slappey Drive in the City of Albany. The following facts appear from the pleadings and the evidence adduced upon the trial of the case: On December 20, 1964, shortly before 7:25 p. m., the defendant's driver, while proceeding in a northerly direction on North Slappey Drive, pulled the defendant's tractor trailer truck across the center line to the left or westerly side of said thoroughfare and there parked the same adjacent to the west curb of said roadway at a point in front of a truck stop known as "Po Boy Truck Stop." The driver left the truck thus parked unattended while he entered the truck stop for the purpose of procuring an evening meal. At that point North Slappey Drive is a paved and curbed highway 68.4 feet in width from curb to curb with two lanes for travel in each direction and with an additional lane available to be used for parking adjacent to each curb. At the time in question it was dark and was raining and visibility was poor. Shortly after the defendant's truck had been parked the plaintiff's husband, driving his automobile in a southerly direction along North Slappey Drive, collided with the front end of the defendant's truck sustaining injuries from which he subsequently died on January 24, 1965. The plaintiff contended that the defendant was negligent in parking its tractor trailer on the west side of North Slappey Drive with the west side of the tractor trailer approximately 2 feet east of the west curb; in failing to have the truck equipped with a lamp or lamps displaying a white or amber light visible for a distance of 500 feet in front of the vehicle; and in parking the truck on the west side of North Slappey Drive headed in the wrong direction. The plaintiff further charged the defendant with negligence per se in the violation of certain State laws and municipal ordinances of the City of Albany with respect to the display of lights on vehicles parked in the traveled portion of the public street or highway. The defendant answered, denying the material allegations of the plaintiff's petition, and upon the trial of the case the jury returned a verdict for the plaintiff in the amount of $12,500.
The defendant made a motion for a new trial on the general grounds and a motion for a judgment notwithstanding the verdict on the same grounds, which motions were overruled, and the defendant has appealed to this court from the final judgment. Such additional facts as may be necessary to an understanding of the rulings made will be set forth in the opinion.
1. The trial court did not err in overruling the motion for a judgment notwithstanding the verdict. The only grounds upon which this motion was urged were that the verdict was contrary to the evidence and without evidence to support it; that the verdict was decidedly and strongly against the weight of the evidence, and that the verdict was contrary to law and the principles of justice and equity. Where there is any evidence supporting the verdict, such grounds merely invoke the discretion of the trial court on the question of whether a new trial should be granted on the weight of the evidence. Code § 70-202; West Lumber Co. v. Castleberry, 76 Ga. App. 9 (1) ( 45 S.E.2d 67); Martin v. State, 95 Ga. App. 519 ( 98 S.E.2d 105). But, the sole purpose of a motion for a judgment notwithstanding the verdict is to permit the trial court to review and consider its ruling on an antecedent motion for a directed verdict. Shetzen v. C. G. Aycock Realty Co., 93 Ga. App. 477, 479 (1b) ( 92 S.E.2d 114); Crown Carpet Mills v. C. E. Goodroe Co., 108 Ga. App. 327, 330 (1) ( 132 S.E.2d 824). It is fundamental that, before the trial court would be authorized to direct a verdict in favor of one party and against another, the evidence must demand the verdict directed. Code Ann. § 110-104; Barron G. Collier, Inc. v. Bailey, 31 Ga. App. 197 (2) ( 120 S.E. 427). After a case has been tried and a jury has rendered a verdict in favor of one party, the mere fact that the trial judge is of the opinion that the verdict is against the weight of the evidence and in the exercise of his discretion would grant a new trial on the general grounds, affords no basis for the grant of a judgment notwithstanding the verdict. None of the grounds of the motion for a judgment notwithstanding the verdict in this case raised the question that a verdict for the movant was demanded, and such grounds were thus insufficient to present any question for the trial court's consideration or to authorize the grant of a judgment notwithstanding the verdict.
2. In the third and fourth enumerations of error the appellant contends that the court erred in instructing the jury as to the provisions of § 68-1710 of the Code of Georgia and as to the provisions of § 16-75 of the Code of the City of Albany, both of which relate to the requirements for displaying lights on vehicles parked on a public roadway in the nighttime, and which, in effect, require that such lights be of such brilliance as to be observable for a distance of 500 feet, both to the front and rear of the vehicle so parked. The contention of the appellant is that there was no competent evidence that the defendant's truck was not equipped with lights in accordance with the requirements of the Code sections referred to. The evidence showed that on the night in question it was raining and visibility was poor. One of the plaintiff's witnesses testified that he had traveled along the street at the location where the defendant's truck was parked shortly before the plaintiff's husband collided with it; that he could not see very far, no more than 75 or 100 feet, and that "he liked to have run into the truck"; that he could see only little lights on the top of the truck; that they were yellow lights and appeared to be some distance down the street; that he did not see them until he was within about 75 feet of them, and that they gave the appearance of being 200 yards down the street; that he did not see any other lights on the truck; and that he did not see a blinker light. Aside from the defendant's witnesses, which included, of course, the driver of the truck, this was the only evidence respecting the lights. All of defendant's witnesses, who testified as to the lights on the truck, testified that they were adequate lights and that a 4-way blinker light was operating at the time of the collision. However, the testimony of the plaintiff's witness, though negative in character, was certainly some evidence making an issue for the jury to decide as to whether the truck was displaying lights in compliance with the law at the time of the collision. Where an issue is made by the pleadings it is not error to charge the law relating thereto, if such issue is supported by some evidence, even though such evidence be slight. Harper v. Hall, 76 Ga. App. 441 (2) ( 46 S.E.2d 201). The trial court is authorized to charge the law with respect to an issue made by the pleadings, notwithstanding the fact that one side of the issue is supported only by negative evidence while the other is supported by positive evidence. Western c. R. Co. v. Mallett, 23 Ga. App. 367 (2) ( 98 S.E. 238). In Georgia R. Bkg. Co. v. Wallis, 29 Ga. App. 706, 714 ( 116 S.E. 883), where the issue was whether the bell on defendant's engine was ringing immediately before the defendant's train struck and killed the plaintiff's intestate, and where the plaintiff, upon whom the burden reposed, sought to prove this issue by witnesses who testified merely that, though they were present, they did not hear the bell, Judge R. C. Bell, speaking for this court, said: "`Negative evidence' does not amount to no evidence at all; otherwise the term would be a misnomer. And jurors are not obliged to discard it merely because of the existence of positive evidence in conflict therewith. `Where the existence of a fact was affirmed by positive evidence and denied by negative evidence, an issue was raised, and the trial judge committed no error in properly submitting such issue to the jury.' Western Atlantic R. Co. v. Mallett, 23 Ga. App. 367 (2) ( 98 S.E. 238). Negative evidence is only a species of circumstantial evidence. See also in this connection, Innis v. State, 42 Ga. 474 (1); Pendergrast v. Greeson, 6 Ga. App. 47, 50 ( 64 S.E. 282); Hunter v. State, 4 Ga. App. 761 ( 62 S.E. 466)." So in this case, as in that case, the jurors were authorized to find against the defendant upon this ground of alleged negligence, and the trial court did not err in submitting this issue to them. These grounds are without merit.
3. In their fifth enumeration of error and in their brief relating thereto counsel for the appellant contend that the trial judge erred in submitting to the jury the question of whether or not the accident in question took place within a business or a residential district, and in this connection, in charging the provisions of Code Ann. § 68-1668 (a), which prohibits the stopping, standing, or parking of a vehicle upon the paved or main traveled part of the highway at any point outside of a business or a residential district when it is practical to stop, park or leave such vehicle standing off the highway. The substance of appellant's contention in this regard is that the evidence demanded a finding that the place of the accident was within a business district as defined by Code Ann. § 68-1504 (5) (a), and that under these circumstances, instructing the jury with respect to the duty of the driver of a vehicle not to park it on the main traveled portion of the highway outside a business or residential district was confusing and misleading to the jury and injected into the case an issue not made by the evidence, and that in so charging the jury the court committed manifest and harmful error.
Code Ann. § 68-1504 (5) (a) defines a business district as follows: "The territory contiguous to and including a roadway when within any 600 feet along such roadway there are buildings in use for business or industrial purposes, including but not limited to hotels, banks or office buildings, railroad stations, and public buildings which occupy at least 300 feet of frontage on one side or 300 feet collectively on both sides of the roadway: Provided, however, that when such territory is located outside the incorporated limits of a city or town, it is designated and marked as such by the Director of Public Safety." While we know the proper construction to be given to this enactment of the legislature, it must be conceded that the exact meaning and intent of the legislature with respect to the definition of a business district may be subject to varying interpretations by reasonable men. What is the proper construction to be given to a statute, however, is for the court and not for the jury. LimeCola Bottling Co. v. Atlanta W. P. R. Co., 34 Ga. App. 103 (1) ( 128 S.E. 226). But, whether or not the place of the accident in this case was within a business district, as defined by the legislature and as such definition has been properly construed by the courts, was ultimately a question of fact to be determined by the jury from the evidence adduced before them in the trial of the case. The appellant does not contend that the trial court erroneously construed the statute or incorrectly instructed the jury as to its meaning, or that it failed to instruct the jury as to the proper construction of the statute, but merely that the court erred in instructing them in accordance with the statute as to the definition of a business district and in leaving to the jury the decision of the question of whether or not, under the evidence adduced, the facts in this case placed the location of the accident within a business district. Under the instructions as given by the court we think the jury may well have reached a decision either that the locale of the accident was within a business district or that it was not within a business district, though the evidence as to the use of the land and as to the nature of the buildings abutting the highway was undisputed. While the court probably should have construed the statute for the jury and instructed them more fully with respect to what constitutes or does not constitute a business district, the appellant does not complain that this was not done, but merely because the court left to the jury the decision as to whether, under the evidence, the accident occurred within a business district or outside a business or residential district. (There was no evidence, as conceded by both parties, that the locale was within a residential district.) Appellant did not request any fuller or more complete instructions, and in the absence of such a request, it clearly was not error for the court to instruct the jury as complained of in the fifth enumeration of error.
4. As pointed out in Division 1 of this opinion, the evidence with respect to the alleged negligence of the defendant was in conflict, but was clearly sufficient to authorize a verdict for the plaintiff in some amount. The evidence shows that the plaintiff's husband was a 29-year-old, able-bodied man earning $65 per week with a life expectancy of 36.03 years according to "The American Experience Table of Mortality." In view of this evidence it is apparent that the jury, in rendering a verdict for only $12,500, did not find that the plaintiff's husband was wholly without fault, but in applying the comparative negligence doctrine reduced the recovery of the plaintiff in proportion to the negligence they found attributable to her husband. It cannot be said that the evidence did not authorize the verdict for the plaintiff.
Judgment affirmed. Jordan, P. J., Deen and Quillian, JJ., concur.