Opinion
44131.
SUBMITTED JANUARY 8, 1969.
DECIDED FEBRUARY 4, 1969.
Action for damages. Richmond Superior Court. Before Judge Fleming.
Fulcher, Fulcher, Hagler, Harper Reed, William C. Reed, for appellant.
Harris, Chance McCracken, Kenneth R. Chance, for appellee.
1. Evidence by the plaintiff that he was driving on his own side of the road and did not see any light or the two vehicles obstructing the right traffic lane and shoulder of the road until one of the cars became visible by the light of his own headlights is sufficient to raise a jury question as to whether the stationary vehicles were lit, although there was other testimony to this effect.
2. Excerpts from the charge of the court not objected to at the proper time will usually not be considered by this court.
3. The instructions regarding statutory requirements for lighting stationary vehicles on the paved portions and shoulders of highways at night are not subject to the objections urged.
SUBMITTED JANUARY 8, 1969 — DECIDED FEBRUARY 4, 1969.
This is an appeal by the defendant in the trial court from the order overruling his motion for new trial. A Comet automobile had been driven off the shoulder of a newly repaved road and into a ditch. The defendant, with his wrecker, was in the process of removing this car to his garage around 2 a. m. when the plaintiff Medlock, driving at a speed between 40 and 60 miles per hour, collided with both vehicles, which were on his right-hand side of the road. Apparently the wrecker was out in the middle of the road with the left door open in the plaintiff's lane of traffic, while the Comet was sitting partly on and partly off plaintiff's traffic lane and mostly on the shoulder of the road. Plaintiff's automobile, after skidding over 40 feet, hit the open door of the wrecker and the body of the Comet. The evidence was in dispute as to whether the speed limit, ordinarily 50 miles per hour at that location at night, had been reduced to 20 miles per hour on account of prior road work; whether the defendants had lights; whether the plaintiff was driving under the influence of intoxicants, and whether he was speeding. It is conceded that the disabled vehicle was not marked by lights or flares as required by Code Ann. § 68-1668 (b).
1. The plaintiff's admission of the quantity of beer consumed by him in the 12-hour period prior to the collision does not demand a finding that he was under the influence of intoxicants in view of the testimony of other witnesses that they smelled no alcohol on him, that he did not appear intoxicated, and that his operation of the automobile at a period shortly before the collision negatived intoxication. His testimony that he was looking down the road and saw no lights, and did not see the vehicles parked in the road until they were illuminated by the beam of his own headlights conflicts with the testimony of other witnesses to the effect that the wrecker beacon was flashing, but is sufficient in and of itself to create a jury issue on this point. Youngblood v. Ruis, 96 Ga. App. 290, 296 ( 99 S.E.2d 714); Ellis v. Southern R. Co., 96 Ga. App. 687, 697 ( 101 S.E.2d 230). The size of the verdict suggests that the jury may have applied the comparative negligence doctrine as charged by the trial court, and we cannot say as a matter of law either that the defendant was free from negligence or that the plaintiff's negligence was such as to bar him from any recovery.
2. An exception to an excerpt from the charge on the ground that it was an expression of opinion by the trial court was not called to the judge's attention or objected to at the time. While it is inaptly and ambiguously worded, we do not feel that it represents substantial error in view of the other clear instructions of the trial court on negligence and the statement that "the court does not mean to express or intimate to you any opinion it may have as to what has or has not been proven, nor as to who should prevail in this case; those are questions for your sole, exclusive determination." Metropolitan Transit System v. Barnette, 115 Ga. App. 17 (1) ( 153 S.E.2d 656).
3. The trial court gave in charge Code Ann. § 68-1710 (b) having to do with lights on vehicles stopped at night on a roadway or the shoulder adjacent thereto and requiring lamps visible for a distance of 500 feet. This charge is objected to on the ground that it might authorize a jury to return a verdict for the plaintiff although they found the wrecker to be adequately lighted and found that the Comet was not, because of being itself wrecked, equipped at the time with operable headlights. It is highly unlikely that the jury could so have applied this Code section as to return a verdict against the defendant on the basis of a headlight failure on the wrecked Comet by the evidence being whether the defendant, who operated a wrecker service and had charge of removing the Comet from the ditch, had adequate lights, flares or signals to alert an oncoming motorist. The instruction shows no reversible error.
Judgment affirmed. Bell, P. J., and Eberhardt, J., concur.