Opinion
43221.
ARGUED NOVEMBER 7, 1967.
DECIDED DECEMBER 4, 1967. REHEARING DENIED DECEMBER 18, 1967.
Action for damages. Thomas Superior Court. Before Judge Lilly.
F. L. Forrester, A. J. Whitehurst, for appellant.
Alexander, Vann Lilly, Heyward Vann, Roy M. Lilly, for appellee.
The court erred in overruling the defendant's motion for a judgment n.o.v.
ARGUED NOVEMBER 7, 1967 — DECIDED DECEMBER 4, 1967 — REHEARING DENIED DECEMBER 18, 1967 — CERT. APPLIED FOR.
Truman W. Bussey sued Nathaniel Dawson in the Superior Court of Thomas County to recover damages for personal injuries and property damage. The petition alleged the defendant's negligence to be his failure to observe the stop-sign ordinance at the intersection of a through street and the street on which defendant was driving, the plaintiff being on the through street. The through street is Park Avenue, and Loomis is the street intersecting it. At the intersection vehicles on Loomis are required by ordinance of the City of Thomasville to stop at the entrance to the through street and yield the right of way to other vehicles which have entered the intersection from the through street, or which are approaching so closely on such through street as to constitute an immediate hazard. The evidence shows that the vehicle driven by the defendant hit the plaintiff's vehicle in the side and damaged it from the front door to the rear end; that the collision occurred at the middle of the intersection; that the plaintiff's vehicle continued its course about 80 feet, then turned into the curb which it hit and bounced back; that the vehicle driven by the defendant remained in the middle of the intersection, turned a little to the right; that the plaintiff never did see the vehicle driven by the defendant before the impact; that the defendant stopped at the intersection, looked to his left and right, saw no one approaching and entered the intersection at ten miles an hour; that the plaintiff did not know how fast he was driving but estimated 20 to 25 miles per hour. The jury found for the plaintiff and the defendant appeals from the judgments overruling his motions for a new trial and for a judgment n.o.v.
The evidence did not authorize the finding that the defendant's negligence was the proximate cause of the damages suffered by the plaintiff or that it was a contributing proximate cause. Proof of this prerequisite was dependent solely on circumstantial evidence which did not exclude the hypothesis that the plaintiff's negligence was the proximate cause. The facts are just as consistent with the defendant's diligence as with his negligence. There is no explanation of why the plaintiff did not see the defendant sooner, and the circumstantial evidence supports the defendant's estimate of his speed whereas the circumstantial evidence does not support the plaintiff's estimate of his speed. The physical facts show that the defendant was traveling at a very low rate of speed and that the plaintiff's speed was much greater. The evidence fails to show affirmatively that the defendant did not stop at the intersection or that he entered it while the plaintiff was approaching it so closely as to constitute an immediate hazard.
The court erred in overruling the defendant's motions for a judgment n.o.v., and, in the alternative his motion for a new trial on the general grounds. The amended grounds of the motion for a new trial are not considered.
Judgments reversed, the former with direction. Eberhardt, J., concurs. Hall, J., concurs in the judgment.