Opinion
39217.
DECIDED DECEMBER 5, 1961. REHEARING DENIED DECEMBER 18, 1961.
Action for damages. Cobb Superior Court. Before Judge Henderson.
Edwards, Bentley, Awtrey Bartlett, Scott S. Edwards, Jr., Calhoun Calhoun, Walter W. Calhoun, for plaintiff in error.
T. J. Long, Ben Weinberg, Jr., contra.
The court erred in overruling the plaintiff's motion for a new trial which complained of the direction of a verdict for the defendant.
DECIDED DECEMBER 5, 1961 — REHEARING DENIED DECEMBER 18, 1961.
Annelle Reid Dellenback sued Mrs. Lilly M. Dobbs to recover damages for the alleged tortious death of the plaintiff's mother, Mrs. Charles S. Reid, a widow. The petition substantially alleged the following: That the defendant was Mrs. Lilly M. Dobbs and that the plaintiff was the natural daughter and sole heir at law of Mrs. Charles S. Reid, a widow; that on July 28, 1957, at approximately 11 a. m., Mrs. Charles S. Reid was a guest passenger in the automobile owned and operated by the defendant, Mrs. Lilly M. Dobbs, and that Mrs. Reid occupied the front right-hand seat of said automobile; that the defendant's automobile was proceeding in a southerly direction in the right-hand lane reserved for south bound traffic on U.S. Highway 17 north of Brunswick, Georgia, when the defendant suddenly and without warning swerved her automobile to the left across the center dividing line for north bound and south bound traffic in an attempt to pass an automobile preceding the car driven by the defendant; that at said time and place there was proceeding in a northerly direction on U.S. Highway 17 in the lane reserved for north bound traffic, an automobile operated by Dorothy Bruce; the defendant drove her automobile across the lane of traffic and into the automobile operated by Dorothy Bruce; the petition further alleged that the defendant was inattentive to her driving and to other vehicular traffic upon the said highway and in driving her automobile across the middle lane and into traffic proceeding in the opposite direction and was therefore guilty of gross negligence; at the time and place it was raining very hard and the visibility was poor for all vehicular traffic including the defendant, and as a result of the heavy rain the road was slick, all of which was well known, and in the exercise of slightest care should have been known, to the defendant. The petition further alleges that as a result of the defendant's gross negligence, the defendant's automobile collided with the automobile operated by Dorothy Bruce and the impact resulted in the death of Mrs. Charles S. Reid. The petition further charged the defendant with the following acts of negligence: (a) In attempting to pass another car traveling in the same direction as the defendant when the visibility was very poor and the defendant could not see ahead by reason of the visibility being very poor; (b) In having complete disregard for and being inattentive to vehicular traffic on said highway traveling in the opposite direction from the defendant, and colliding with the same in the lane reserved for oncoming traffic; (c) In failing to drive on the right-hand side of the roadway, in violation of § 68-1633 of the Code of Georgia, 1933; (d) In failing to give to the oncoming traffic proceeding in the opposite direction at least one-half of the main-traveled portion of the highway in violation of § 68-1634 of the Code of Georgia, 1933; (e) In not having her automobile under sufficient control to prevent colliding with the automobile operated by Dorothy Bruce; (f) In failing to maintain a proper lookout and avoid other vehicular traffic properly proceeding along said highway and avoid striking the same.
The defendant's answer denied all of the material allegations of the petition except those that it was raining very hard, that visibility was poor, and that the road was slick. The court directed a verdict for the defendant and the plaintiff excepts to the overruling of her motion for a new trial as amended.
The relevant testimony in the case is as follows: Mrs. Lilly M. Dobbs, defendant in error, testified substantially: that on July 28, 1957, she was driving her car from Darien to Brunswick, Ga., on Highway 17; that she was accompanied by Mrs. Charles S. Reid who was sitting on the right-hand side on the front seat; that it started raining very hard, in fact so hard she could not see the road in front; that she could see only a few feet ahead and she decided to pull over to her side of the road and wait until it slacked up; that the last thing she remembers was that she was trying to pull over to the right-hand side of the road. Mrs. Dobbs further stated: "I don't remember one thing from the time I started turning to the right until I woke up in the hospital. I was in the hospital two months. . . I was injured seriously. . . I was told that Mrs. Reid was killed in this collision. I don't recall crossing the center line of the highway. . . I don't recall seeing any cars in front of me. . . I was not paying any attention to the traffic to observe any traffic traveling toward me in the opposite direction, I was looking at the road. . . I haven't the slightest idea what I collided with. I don't know where I collided. I understand my automobile was demolished." Mrs. Dobbs further stated that the windows in her car were rolled up but the air conditioning was on so the windows were not frosted; that she did not know the exact spot that the accident took place but she thought it was on the long stretch, the straight-away.
Dorothy Bruce, driver of the car with whom defendant collided, testified substantially as follows: that she was driving her car on Highway 17, July 28, 1957, at approximately 11:30 a. m., when suddenly she saw a car dart out in front of her on her side of the road coming towards her; that this car was traveling in the opposite direction and was in the rear of at least five or six on-coming vehicles when it came on her side of the road; that the road was not wide enough for more than two cars; that the collision took place on her side of the road; that she had no warning of the car darting out onto her side and there was no lapse of time between the time she saw the car dart out on her side of the road and the actual impact; that the first notice she had was when she saw the car on her side of the road, crossways and sliding down the highway towards her. Miss Bruce further stated that it was raining very hard; that she was not driving over forty-five miles per hour but she did not know how fast the defendant's car was traveling.
The court erred in directing a verdict for the defendant. Where the evidence for the plaintiff shows a violation of a criminal statute and does not show justification or lack of criminal intent there is a prima facie presumption of criminal intent and the burden of proof shifts to the defendant to show accident or lack of criminal intent. Ayers v. State, 214 Ga. 156, 160 ( 103 S.E.2d 574). The rule applies to acts malum prohibitum. Bienert v. State, 85 Ga. App. 451, 454 ( 69 S.E.2d 300). In this case a violation of the act of 1953 (Ga. L. 1953, Nov.-Dec. Sess., pp. 556, 582; Code Ann. § 68-1634) was shown. The testimony of the plaintiff's witness, Dorothy Bruce, did not show accident or lack of criminal intent otherwise. It showed that the defendant's automobile was skidding sideways as it approached her on witness's side of the road but it did not show that the skidding began on the defendant's side of the road. The burden was therefore on the defendant to show that non-negligent skidding began on defendant's side of the road. The testimony of the defendant does not show directly that the skidding began on her side of the road. Circumstantially it does not show as a matter of law that the skidding began on her side of the road. It was at least a jury question, if not one that can be labeled as a matter of law as insufficient to show lack of intent, whether the defendant's explanation of how her car got on the wrong side of the road was reasonable or probable. She testified that she was driving at 15 miles per hour and was pulling off to her right-hand side of the road to await a slackening in the raining. It certainly cannot be said that under these circumstances, as a matter of law, the defendant's car somehow got completely across to the other side of the road and skidded sideways into the oncoming car. In Jackson v. Martin, 89 Ga. App. 344 ( 79 S.E.2d 406), relied on so strongly by the defendant in error, the evidence showed that the defendant's vehicle began skidding in its own lane of traffic. The defendant in error also relies strongly on Minkovitz v. Fine, 67 Ga. App. 176 ( 19 S.E.2d 561). That case is not binding because it is contrary to the principle stated in the cases cited at the beginning of this opinion.
The court erred in overruling the motion for a new trial.
Judgment reversed. Bell and Hall, JJ., concur.