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Powers v. Pate

Court of Appeals of Georgia
Nov 15, 1962
129 S.E.2d 193 (Ga. Ct. App. 1962)




Action for damages. Colquitt Superior Court. Before Judge Lilly.

Emory M. Hiers, Whelchel Whelchel, Hoyt H. Whelchel, Jr., for plaintiff in error.

George A. Horkan, Jr., Divine Busbee, William T. Divine, Jr., contra.

The court did not err in overruling the motion for new trial.


Max Lamar Powers filed a suit against Leonard Homer Pate and Ralph S. Pate to recover damages on account of personal injuries and damage to his motorcycle allegedly sustained as a result of a collision between a motorcycle being driven by him and a pickup truck being driven by Leonard Homer Pate. By an amendment to his petition he struck the name of Ralph S. Pate as a defendant. Succinctly, the evidence shows that the collision occurred in the intersection of Georgia State Highway No. 111 and Georgia State Highway No. 202. About 6:30 p. m., on August 19, 1960, plaintiff was proceeding in an easterly direction on Highway 111, and immediately before the collision he was following a pickup truck. The defendant was driving a pickup truck in a southerly direction on Highway 202. The evidence showed that the following signs were located on the right side of Highway 202, facing southbound traffic at or near the intersection in question: "Slow," "Dangerous Intersection," "Stop Ahead," and "Stop." The defendant testified that he was familiar with the intersection, and as he brought his truck to a stop before entering the intersection, he saw a pickup truck approaching the intersection from his right, and, upon entering the intersection, the driver of the approaching pickup truck began making a left turn. But instead of proceeding to the center of the intersection, turning and passing on the defendant's left, the driver of the approaching pickup truck took a short cut and passed on the defendant's right. The defendant testified that he never saw the plaintiff until the moment of the collision; that he had seen only the approaching pickup truck; that he had looked and did not see any traffic behind the approaching truck; and that he could have seen an automobile behind the truck if there had been one behind it.

Plaintiff testified that he saw the defendant's truck approaching the intersection and it appeared as though it was going to be brought to a stop; that he (plaintiff) reduced his speed "to about 5 to 10" miles per hour as he entered the intersection; that he reduced his speed until he was traveling about 5 to 6 miles per hour when he reached a point one-half to two-thirds across the intersection where the collision occurred; that when he was one-half way across the intersection he saw the defendant's truck for the second time; that prior to his entering the intersection the truck which he was following made a short-cut left turn and blocked his view of the defendant's truck; and that the defendant's truck came into the intersection so suddenly he "didn't have time to avoid it or stop or move or anything."

A witness testified that he was driving the pickup truck which the plaintiff was following immediately prior to the collision; that he had passed the plaintiff about 150 or 200 yards from the intersection; that he (witness) was traveling about 50 miles per hour when he passed the plaintiff, and he thought the plaintiff was going about 30 miles per hour when he passed him; that he (witness) slowed down to make a left turn.

There was evidence to show the extent of the plaintiff's personal injuries and the damage to his motorcycle. The jury returned a verdict against Leonard Homer Pate in the amount of $800. The plaintiff filed a motion for new trial on the usual general grounds and, by amendment, several special grounds were added. The court overruled the motion and to this ruling the plaintiff excepts and assigns error.

1. "Questions of negligence, diligence, contributory negligence, and proximate cause are peculiarly matters for the jury, and a court should not take the place of the jury in solving them, except in plain and indisputable cases." Eubanks v. Mullis, 51 Ga. App. 728, 730 ( 181 S.E. 604). See Southern Stages v. Clements, 71 Ga. App. 169 ( 30 S.E.2d 429); Southern Bakeries Co. v. White, 103 Ga. App. 146 ( 118 S.E.2d 724), and cases cited therein. ". . . it has been held many times by the appellate courts that what amounts to negligence, contributory or comparative negligence, proximate cause, etc., are ordinarily questions for the jury under appropriate instructions, and such questions will not be determined by the court as a matter of law except in plain and undisputed cases." Callaway v. Pickard, 68 Ga. App. 637, 641 ( 23 S.E.2d 564), and cases cited therein. When the rule concerning comparative negligence is involved in a case, the verdict of the jury cannot be set aside on the ground that the amount of the damages awarded is inadequate ( Cox v. Nix, 87 Ga. App. 837, 75 S.E.2d 331; see Moore v. Sears, Roebuck Co., 48 Ga. App. 185, 172 S.E. 680); aliter, when liability is established, a verdict is rendered for the plaintiff, and comparative negligence is not chargeable to the plaintiff (see Bishop Parsons v. Mayor c. of Macon, 7 Ga. 200 (6) 50 AD 400; Hood v. Ware, 34 Ga. 328; Roddenberry Hdw. Co. v. Merritt, 17 Ga. App. 425, 87 S.E. 681; Esa v. State, 19 Ga. App. 14, 90 S.E. 732; McLendon v. Floyd, 59 Ga. App. 506, 1 S.E.2d 466; Tallent v. McKelvey, 105 Ga. App. 660, 125 S.E.2d 65). In the instant case we are of the opinion that the question of comparative negligence was involved. While it is true that there were warning signs and a stop sign when defendant approached the intersection, the uncontradicted evidence shows that he did stop before entering it. Therefore, the defendant did not violate any stop sign which had been placed at the intersection for the control of traffic. Teague v. Keith, 214 Ga. 853 ( 108 S.E.2d 489). After having stopped, it was a question for the jury as to whether he was negligent in entering the intersection. The jury found for the plaintiff, and therefore, it is obvious that they found that the defendant was negligent in some degree. On the other hand, even if the plaintiff had the right of way at the intersection, "His right of way and right to assume the absence of negligence by others do not entitle him to drive blindly or recklessly across an intersection, especially one which might be termed a `blind intersection,' without regard to the conditions and consequences. It is his own duty to exercise ordinary care in being alert to observe vehicles approaching the crossing, and to exercise ordinary care in the control, speed, and movements of his car to avoid a collision, after he sees or by ordinary diligence could have seen that one is threatened or imminent." Eddleman v. Askew, 50 Ga. App. 540 (3) ( 179 S.E. 247). See Laseter v. Clark, 54 Ga. App. 669 ( 189 S.E. 265). We are of the opinion that the evidence authorized the jury to infer that the plaintiff was negligent in following too closely behind the truck that was being driven in front of him in such a manner that the defendant could not see him, and that he failed to keep a diligent lookout when he entered the intersection. The verdict was approved by the trial judge, and we are of the opinion that the evidence authorized the verdict. The general grounds and the first three special grounds of the motion are without merit.

2. The plaintiff contends by special ground 10 of his motion for new trial that the trial court erred in overruling his objection to the admission in evidence of seven photographs of the intersection where the collision occurred. The objection is as follows: "I object to them [photographs] on the ground that they have not been properly identified." Movant argues that a proper foundation was not laid as a basis for the admission of the photographs, namely, whether the photographs actually portrayed the scene of the collision correctly and accurately. See Johnson v. State, 158 Ga. 192 ( 123 S.E. 120); Draffin v. Massey, 93 Ga. App. 329 ( 92 S.E.2d 38); Hill v. State, 201 Ga. 300 (6) ( 39 S.E.2d 675). Cf. Georgia Power Co. v. Gillespie, 48 Ga. App. 688 (8) ( 173 S.E. 755), and Western c. R. Co. v. Hughes, 37 Ga. App. 771 (6) ( 142 S.E. 185). See also Green, Ga. Law of Evidence, § 86, p. 202. However, the plaintiff's objection does not reach this question as it relates only to the identification of the photographs. The defendant testified that the photographs were taken in his presence by a named individual on a certain date. He described how and in what position the photographs were taken. We are of the opinion that the pictures were sufficiently identified so as to authorize their admission as against the objection that they had not been sufficiently identified. Special ground 10 of the motion is without merit.

3. Movant contends that it was error to charge the contents of Code Ann. § 68-1650 (a) and (b) without subsection (c), and particularly subsection (d). Clearly, subsection (c) had no application to the facts of the case, and the court did nor err in failing to charge this subsection. Subsection (d) provides: "The right of way rules declared in subdivisions (a) and (b) are modified at through highways and otherwise as hereinafter stated in sections 68-1651 through 68-1653." Had the court charged this subsection it would have had no meaning to the jury without charging and sufficiently identifying the limiting Code sections referred to in Code Ann. § 68-1650 (d). The court did charge the contents of these limiting Code sections. (In fact, in another special ground of his motion, movant contends that the court erred in charging one of these modifying Code sections.) In reviewing the charge as a whole, we find no harmful error in the court's failure to charge subsection (d) of Code Ann. § 68-1650. Special grounds 4 and 5 of the motion for new trial are without merit.

4. The excerpts from the charge complained of in special grounds 6, 7 and 8 were correct as abstract principles of law and authorized by the facts and pleadings. These grounds show no error for any reason assigned.

5. Special ground 9 shows no harmful error for any reason assigned.

Judgment affirmed. Nichols, P. J., and Jordan, J., concur.

Summaries of

Powers v. Pate

Court of Appeals of Georgia
Nov 15, 1962
129 S.E.2d 193 (Ga. Ct. App. 1962)
Case details for

Powers v. Pate

Case Details

Full title:POWERS v. PATE

Court:Court of Appeals of Georgia

Date published: Nov 15, 1962


129 S.E.2d 193 (Ga. Ct. App. 1962)
129 S.E.2d 193

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