Opinion
42445.
ARGUED JANUARY 9, 1967.
DECIDED JANUARY 31, 1967.
Action for damages. Bleckley Superior Court. Before Judge O'Connor.
J. Corbett Peek, Jr., Milton Harrison, Glenville Haldi, for appellant.
Smith Harrington, Will Ed Smith, for appellee.
1. On review of a judgment entered upon a motion for judgment notwithstanding the verdict this court limits its consideration to the grounds which are the same as those urged on motion for directed verdict.
2. Where under the facts of the case a jury question was presented, the trial judge did not err in denying the motion for judgment notwithstanding the verdict and entering judgment for the plaintiff.
ARGUED JANUARY 9, 1967 — DECIDED JANUARY 31, 1967.
Mandie Sheffield brought an action for the wrongful death of her son, Alford D. Sheffield, in Bleckley Superior Court against C. E. Peacock. The petition alleged that the defendant's car blocked the lane in which the deceased's car was traveling and that the deceased was killed when his car struck the defendant's "illegally parked" car. The specific acts of negligence charged against the defendant were: (1) stopping and parking his automobile on the highway in violation of Code Ann. § 68-1668 (a) (Ga. L. 1953, Nov. Sess., pp. 556, 597); (2) failing to give a signal by lights or flares as required by Code Ann. § 68-1668 (b) (Ga. L. 1953, Nov. Sess., pp. 556, 597); (3) parking within 12 feet of the center line of the highway in violation of Code Ann. § 68-1670 (a-15) (Ga. L. 1953, Nov. Sess., pp. 556, 598; Ga. L. 1963, p. 382); (4) failing to give any warning or notice of the illegally parked car. The prayers were for the recovery of $221,580 in damages, as the value of the deceased's life.
The defendant answered, denying the material allegations of the petition and the cause came on for trial.
The evidence showed that the fatal collision occurred at approximately 1:15 a. m. January 17, 1965, on the southbound lane of the Cochran-Eastman highway (U.S. 23). The defendant was proceeding south towards Eastman when his car stalled in the right-hand or southbound lane. The defendant and his sister, who was accompanying him, attempted, for some five minutes, to push the car off the road and were unable to do so, then got back into the car because of the cold. After stopping, the defendant's car remained stalled on the road for 15 to 20 minutes. There was room for the defendant to have pulled off the highway (if he was able to). The defendant was attempting to start the car or move it with the starter when the deceased's car crashed into the defendant's car from the rear. The deceased was also proceeding south on Highway 23; he passed a newspaper delivery truck, the driver testifying he was traveling around 50-55 m.p.h. when the deceased passed and that the deceased continued on about 300 yards ahead. The driver stated all he saw was the tail lights of deceased's car and then a blue-white flash when the collision occurred.
The defendant and his sister testified that they did not utilize any flares or signals but that the car lights were left on. The truck driver testified he couldn't see any other tail lights, lights, or flares before the collision but he could not determine whether the defendant's lights were burning because the deceased's car was between him and the other car.
State patrolmen who investigated the collision testified there were no skid marks on the highway at or near the scene, that the deceased's car struck the defendant's car directly from behind and, based on the force of the impact, which drove the defendant's car some 150 feet, estimated the deceased's speed to be 65 m.p.h. The speed limit at night is 50 m.p.h.
As adduced from the testimony of the defendant and his sister, about 4 miles "up the road" from the location of the occurrence the oil pressure in the defendant's car dropped and about a mile from the site of the collision the defendant slowed the automobile to around 10-15 m.p.h. and thus continued until the car abruptly halted. As explained by a mechanic, the reason for the car's mechanical failure was a hole in the motor from which the oil supply leaked, apparently caused by the engine's "throwing a rod." There was a meandering trail of oil some 300 yards long, which wandered at one point over the center line of the highway, leading up to the point of the collision.
Prior to the car's sudden stopping, the defendant denied hearing anything above his "straight exhaust" noise although a witness testified that a rod being thrown could be heard above even "straight exhaust" sounds while driving at a slow rate of speed.
There was testimony that the defendant had been drinking, which he admitted; however, he denied that he was intoxicated.
At the close of the evidence, the defendant moved for a directed verdict which was denied by the trial judge. The jury returned a verdict for the plaintiff in the amount of $10,000; whereupon, the defendant filed a written motion for judgment notwithstanding the verdict. After hearing evidence, the trial judge overruled and denied the motion. The defendant's notice of appeal is taken from the order overruling the motion for judgment notwithstanding the verdict.
The enumeration of errors filed in this court specifies that the trial judge erred in: (1) overruling the defendant's motion for a directed verdict; (2) overruling the defendant's motion for judgment notwithstanding the verdict; (3) entering judgment for the plaintiff.
1. At the close of the evidence, counsel for the defendant moved for a directed verdict in the following language which we quote in part: "At this time I would like to move for a directed verdict on behalf of the defendant in the proposition under the law that the evidence clearly shows that whatever negligence the defendant may have been guilty of, if any, was a static condition, and the evidence clearly shows that the plaintiff through the exercise of ordinary care could have seen him or should have seen him and avoided the consequences of any negligence that the defendant may have been guilty of. I realize that usually the question of negligence is one for the jury to determine, but I think the facts in this case are so clear. . . [Here follows a recitation of the facts upon which the defendant relies.] So it is our position that it is clear that through the exercise of ordinary care he could have avoided this — any injury to himself."
The motion for judgment notwithstanding the verdict set out that the defendant should have had his motion for directed verdict granted because the evidence demanded a verdict in his favor and was predicated on the following grounds: "there being no evidence to show that this defendant was guilty of negligence, there being evidence to show as a matter of law that the deceased . . . failed to exercise ordinary care for his own safety, there being evidence to show conclusively that the deceased . . . was guilty of negligence proximately causing his injury and death and further that the evidence showed that as a matter of law the deceased . . . could, through the exercise of ordinary care, have avoided any negligence of the defendant."
"The sole purpose of a motion for judgment n.o.v. in this jurisdiction is to permit the trial court to review and reconsider its ruling on the antecedent motion for a directed verdict. This court in each case where a ruling entered on a motion for judgment n.o.v. is before it for review will limit consideration to the grounds which are the same as those urged on motion for directed verdict." Crown Carpet Mills v. Goodroe Co., 108 Ga. App. 327 (1) ( 132 S.E.2d 824). Sunbrand Supply Co. v. Garment c. Corp., 99 Ga. App. 72, 75 ( 107 S.E.2d 680); Wright v. Trust Co. of Ga., 108 Ga. App. 783, 784 ( 134 S.E.2d 457).
Hence, we can not consider the ground of the judgment notwithstanding the verdict that there was no evidence showing the defendant was negligent since this contention was not an integral part of the motion for a directed verdict.
2. We therefore only pass upon the identical grounds of the motion for directed verdict and judgment notwithstanding the verdict, to wit: does the evidence show indisputably that the deceased, through the exercise of ordinary care, could have avoided the consequences of any negligence on the defendant's part. "The motion for a judgment notwithstanding the verdict . . . can have merit only if this evidence demands as a matter of law a finding that the plaintiff was so lacking in ordinary care for his own safety as to have by his acts been the preponderating proximate cause of his injuries, or else that he failed to exercise ordinary care after the negligence of the defendants became known to him." Reynolds v. Rentz, 98 Ga. App. 4, 9 ( 104 S.E.2d 608).
This court has held: "Speed alone in excess of the speed limit would not bar the plaintiff's recovery . . . but would present a jury question as to whose negligence preponderated to cause the injuries." Higdon Grocery Co. v. Faircloth, 107 Ga. App. 558, 561 ( 130 S.E.2d 760); L. N. R. Co. v. Stafford, 146 Ga. 206, 209 ( 91 S.E. 29). "Negligence per se, of which the deceased was admittedly guilty, is no greater as a matter of law than negligence as a matter of fact, and it is the right and province of the jury to determine the degree or amount of negligence attributable to each party and whose negligence is greater and whose and what negligence was the proximate cause of the injuries complained of." Johns v. Secress, 106 Ga. App. 96, 98 ( 126 S.E.2d 296).
"Ordinarily questions of negligence, gross negligence, contributory negligence, and whose negligence was the proximate cause of an injury, and related questions are for the jury alone, and the courts will decline to solve such questions . . . except in plain, palpable, and indisputable cases." Brown v. Binns, 87 Ga. App. 485 (2) ( 74 S.E.2d 370); Allgood v. Butler, 88 Ga. App. 231 (1) ( 76 S.E.2d 437; Malcom v. Malcom, 112 Ga. App. 151 ( 144 S.E.2d 188).
Under the facts of this case it can not be held as a matter of law that the deceased acted in so negligent a manner as to preclude any recovery. McDowall Transport v. Gault, 80 Ga. App. 445 ( 56 S.E.2d 161). See also Harper v. Williams, 89 Ga. App. 645, 647 ( 80 S.E.2d 722); Reynolds v. Rentz, 98 Ga. App. 4, supra. Here as in the Johns case, 106 Ga. App. 96, supra, the verdict shows that the jury apparently did in fact compare the negligence of the deceased and of the defendant and reduced the plaintiff's recovery on the basis of that comparison.
The trial judge did not err in allowing the case to go to the jury.
Judgment affirmed. Frankum, P. J., and Deen, J., concur.