Opinion
44431.
ARGUED APRIL 7, 1969.
DECIDED JUNE 13, 1969. REHEARING DENIED JULY 16, 1969.
Action for damages. Cook Superior Cook. Before Judge Lott.
Reinhardt, Ireland, Whitley Sims, John S. Sims, Jr., Glenn Whitley, for appellant.
Edward Parrish, Elsie H. Griner, for appellee.
1. (a) There being evidence sufficient to present a question for the jury whether the defendant sufficiently reduced the speed of his automobile when approaching an intersection in compliance with Code Ann. § 68-1626 (c), the denial of the defendant's motion for a directed verdict, proffered at the close of all the evidence, was not error.
(b) In view of the evidence adduced at the trial and thus in order to meet the ends of justice, the denial of the motion for directed verdict made at the close of the plaintiff's evidence is reversed with direction that a new trial be granted.
2. In view of the ruling made in Division 1 of this opinion the question of the trial judge's failure to grant a mistrial is moot.
3. Medical bills incurred for the treatment of the plaintiff's injuries should have been admitted only for the limited purpose of showing the extent of the injuries.
4. It was not error to admit certain evidence, objected to as hearsay, for the purpose of impeachment.
5. It was error to charge the provision of Code Ann. § 68-301 which has been held to be in violation of the due process clauses of the State and Federal Constitutions.
ARGUED APRIL 7, 1969 — DECIDED JUNE 13, 1969 — REHEARING DENIED JULY 16, 1969.
This case arises out of an automobile-motorscooter collision that occurred on February 17, 1967, in Cook County, Georgia, at the intersection of the Brushy Creek Road with the Chaserville-Laconte Road. The Brushy Creek Road is a paved public road that runs generally north and south through the northern part of Cook County. The Chaserville-Laconte Road is a dirt road that runs generally east and west through the northern portion of Cook County. Traffic at the intersection of the Brushy Creek Road with the Chaserville-Laconte Road is controlled by stop signs located at the east and west entrances thereto commanding traffic on the dirt road to stop.
Immediately prior to the collision, the defendant was traveling north on the Brushy Creek Road and the plaintiff was traveling west on the dirt road. As the two vehicles approached the intersection the plaintiff failed to come to a complete stop and entered the intersection, and a collision between the two vehicles occurred.
The petition alleged: that the defendant was driving at an excessive rate of speed of approximately 75 miles per hour; that he failed to keep a proper lookout; that he failed to have his automobile under immediate and proper control; that he failed to yield the right of way to the plaintiff; that he failed to timely apply his brakes on said automobile and that he failed to drive to the right of the center line of said highway. The defendant contended that the plaintiff failed to exercise ordinary care for his own safety in that he failed to stop in obedience to a stop sign and that plaintiff's negligence was the proximate cause of his alleged injuries and damages; that at the time the collision occurred the speed of the defendant's automobile was reduced to 30 m. p. h.
The case came on for trial at which the following evidence was adduced.
Bobby Eugene Griffin, the plaintiff, testified: that on February 17, 1967, when he was 14 years of age he was driving and riding an Allstate motorscooter in a westerly direction along a dirt road that crossed the highway; that he lived close to this intersection and was quite familiar with it; that he knew stop signs were located at the intersection and that traffic on the dirt road was supposed to come to a complete stop; that as he approached the intersection of the dirt road with the highway he slowed down, looked both ways and did not see the car coming, and did not stop at the stop sign but proceeded out into the intersection and was struck by defendant's automobile; that he had no explanation as to why he did not see defendant's automobile before entering the intersection and that following the collision he told his father that the wreck was his fault; that he had "been across there several times, and I'd slow down and go on across."
J. W. Snead, a deputy sheriff of Cook County, testified: that on the afternoon of February 17, 1967, he received a call and went to the scene of an accident on the Brushy Creek Road; that upon his arrival he found a motorscooter lying in the center of the road just north of its intersection with the Chaserville-Laconte Road; that he noticed skid marks that started just south of the intersection which veered to the left and the left skid mark was about two feet off the west edge of the pavement of the Brushy Creek Road at the intersection; that the skid marks then continued northward on the left shoulder of said road and then back upon the pavement of the road; that he and a trooper measured the skid marks but that he could not give an estimate in feet as to their length; that he observed stop signs at the intersection commanding traffic on the dirt road to stop; that from his investigation he determined that the plaintiff was going west on the dirt road and that the defendant was traveling north on the paved road.
Homer Gandy, the defendant, testified: that he was traveling north on the Brushy Creek Road and that, as he approached the intersection in question, he saw the plaintiff approaching the intersection from the east at a slow rate of speed; that he was about 60 yards from the intersection when he first saw the plaintiff and that the plaintiff was approximately 30 to 40 feet from the intersection at that point; that the plaintiff appeared to be coming to a halt; that he was driving approximately 50 m. p. h. at that time; that when he saw the plaintiff he took his foot off the accelerator, pulled his automobile to the left-hand side of the road; that when he was approximately 20 to 30 feet from the intersection, he realized that the plaintiff was not going to stop at the stop sign; that he immediately applied the brakes and steered his vehicle to the extreme left-hand side of the road; that the plaintiff's motorscooter ran into the right front side of his automobile; at the time of the collision his automobile had the left wheels off the road on the left-hand side; that he could not go any further to the left because there was a bad ditch on that side of the road; that at the time of the collision his automobile was traveling at 30 m. p. h.; after the collision his automobile traveled 38 steps north of the intersection.
Rev. Felton L. Gaskins, an eyewitness to the collision, testified that on the date and time of the collision he was parked in his automobile on the north side of the dirt road just east of the intersection and that his automobile was facing west toward the intersection; that while sitting in his car, the plaintiff came by him on a motorscooter and proceeded out into the intersection without stopping and was struck by defendant's automobile that was proceeding north through the intersection; that he saw defendant's car approaching the intersection at about the same time he saw plaintiff's motorscooter and that in his opinion the defendant's automobile was traveling approximately 50 to 55 m. p. h. as it approached the intersection; that following the collision the motorscooter was lying approximately in the center of the intersection and the defendant's automobile stopped just north of the intersection.
The defendant made motions for directed verdict at the close of the plaintiff's evidence and at the close of all the evidence. Both motions were denied. The jury returned a verdict for the plaintiff. The defendant appealed and the case is here for review.
1. (a) The defendant contends the evidence disclosed that he was not negligent in any manner and that his motion for a directed verdict should have been granted. Code Ann. § 68-1626 (c) (Ga. L. 1953, Nov. Sess., pp. 556, 578), provides in part: "The driver of every vehicle shall, consistent with the requirements of subdivision (a), drive at an appropriate reduced speed when approaching and crossing an intersection or railway grade crossing."
The evidence disclosed: that the defendant was approximately 60 yards from the intersection when he first saw the plaintiff, that he did not put on his brakes but did take his foot off the accelerator; that at the time he first saw the plaintiff the defendant's automobile was traveling at approximately 50 m. p. h.; that at the time the collision occurred the speed of the automobile was reduced to 30 m. p. h. Under the holdings in Corley v. Russell, 92 Ga. App. 417 (1) ( 88 S.E.2d 470), and Hardwick v. Ga. Power Co., 100 Ga. App. 38, 43 ( 110 S.E.2d 24), this evidence though meager and weak was sufficient to present a question for the jury whether the defendant sufficiently reduced the speed of his automobile when approaching the intersection in compliance with Code Ann. § 68-1626 (c). "A verdict should not be directed unless there is no issue of fact, or unless the proved facts, viewed from every possible legal point of view, can sustain no other finding than that directed." Norris v. Coffee, 206 Ga. 759 (4) ( 58 S.E.2d 812).
The denial of the motion for directed verdict, proffered at the close of all the evidence, was not error.
(b) The defendant correctly contends that when the motion for directed verdict was made at the close of the plaintiff's evidence there was no evidence as to the speed of defendant's vehicle as it approached or entered the intersection. However, we can not agree with the further contention that a judgment should be entered in his favor.
Code Ann. § 81A-150 (e) provides: "Where error is enumerated upon an order denying a motion for directed verdict, and the appellate court determines that such motion was erroneously denied, it may direct that judgment be entered below in accordance with the motion, or may order that a new trial be had, as the court may determine necessary to meet the ends of justice under the facts of the case." Ga. L. 1966, pp. 609, 656; 1967, pp. 226, 246. In view of the evidence subsequently adduced which, as discussed in the preceding subdivision of this opinion, was sufficient to present a jury question, it would not serve the ends of justice for this court to order that a verdict be directed for the defendant. Hence, the judgment is reversed but with direction that a new trial be granted.
2. The appellant enumerates as error the overruling of his motion for mistrial. The basis of the motion was a statement by the plaintiff's father that he had not been able to pay the medical bills that had been incurred as a result of the injuries which the plaintiff received in the collision. The appellant contends that the evidence injected the plaintiff's financial condition into the case. With this contention we agree. The fact that the plaintiff's father was not financially able to pay the medical bills was immaterial and prejudicial because its only purpose would be to gain sympathy for the plaintiff. Southern R. Co. v. Black, 57 Ga. App. 592 (5) ( 196 S.E. 291); John J. Woodside c. Co. v. Reese, 105 Ga. App. 602 (6) ( 125 S.E.2d 556). However in view of the ruling in Division 1 of the opinion the question of the trial judge's failure to grant a mistrial is moot.
3. During the course of the trial, medical bills incurred as a result of the plaintiff's injuries were admitted in evidence. Plaintiff's counsel contended at the time of their admission that if the plaintiff's father was not financially able to pay the bills the plaintiff would be liable for their payment and therefore entitled to recover for them in this case. This contention was erroneous. The expenses incurred by the father in having his son treated could only be recovered in a suit by the father against the defendant. Rogers v. McKinley, 48 Ga. App. 262, 270 ( 172 S.E. 662). The admission over objection of the medical bills, except for the limited purpose of showing the extent of the injuries, was error.
4. Vernon Griffin, the plaintiff's father, was allowed over objection to testify that Mrs. Gandy told him that the defendant "was driving too fast both coming to town and going from town back home." She denied having made the statement. This testimony was admissible, over the objection that it was hearsay, to impeach Mrs. Gandy who had testified that the defendant was driving 45 to 50 m. p. h. when approaching the intersection. Edenfield v. State, 41 Ga. App. 252, 254 ( 152 S.E. 615); Loomis v. State, 78 Ga. App. 336 (1) ( 51 S.E.2d 33).
5. It was error to charge the provision of Code Ann. § 68-301 (Ga. L. 1955, p. 454), which was held to be in violation of the due process clauses of the State and Federal Constitutions. Frankel v. Cone, 214 Ga. 733 (2) ( 107 S.E.2d 819).
Judgment reversed with direction that a new trial be granted. Felton, C. J., and Pannell, J., concur.