Opinion
43156.
ARGUED OCTOBER 5, 1967.
DECIDED NOVEMBER 20, 1967.
Action for damages. Clarke Superior Court. Before Judge Barrow.
Erwin, Birchmore Epting, Denny C. Galis, for appellant.
Guy B. Scott, Jr., for appellee.
1. A witness, not qualified as an expert, may give his opinion when he also testifies as to the facts on which such opinion is based.
2. In view of the evidence adduced, since the jury might find that any one or two or more of the facts alleged constituted gross negligence, the trial judge did not err in so charging.
ARGUED OCTOBER 5, 1967 — DECIDED NOVEMBER 20, 1967.
Lillie Mae Willingham brought an action in Clarke Superior Court against Jimmy P. Gunter to recover medical expenses and loss of services of her minor son who was injured in an automobile accident.
The petition alleged that the plaintiff's son was a guest passenger who received injuries when the automobile in which he was riding, and which was being driven by the defendant, overturned on the "North By-Pass" outside of Athens, which was then under construction. The son's injuries were alleged to have resulted from the defendant's negligence in driving recklessly and failing to maintain control, by driving while under the influence of intoxicating liquor and of being grossly negligent in knowingly driving his car at night on an unopened and not completed highway, while intoxicated and at a speed of 110 miles per hour.
The defendant answered denying the material allegations of the petition and the case came on for trial, the jury returning a verdict for the plaintiff. During the course of the trial, at the close of the evidence the defendant moved for a directed verdict which was overruled.
The defendant appealed from the final judgment and enumerates as error the trial judge's failure to direct a verdict in his favor and a portion of the charge made to the jury.
1. In his enumeration of errors the defendant, appellant here, contends he was entitled to a directed verdict for two reasons. However, only one ground was urged in the motion for directed verdict and we confine our discussion to it. See Sunbrand Supply Co. v. Garment c. Corp., 99 Ga. App. 72, 75 ( 107 S.E.2d 680); Crown Carpet Mills v. C. E. Goodroe Co., 108 Ga. App. 327 (1) ( 132 S.E.2d 824).
It is argued that "the plaintiff's evidence shows conclusively that the proximate cause of her son's injuries was unknown." A police officer, although not qualified as an expert, testified that in his opinion the cause of the accident was "speed" which he estimated to be 110 miles per hour. In the course of his testimony the officer related the length of the car's skid marks, the distance it rolled over, the damage to the vehicle and the condition of the road. Ordinarily, where a witness does not actually observe the vehicle in motion, he must qualify as an expert in order to give his opinion as to speed based on various external data. Carroll v. Hayes, 98 Ga. App. 450, 452 (3) ( 105 S.E.2d 755). See Ann., 23 ALR2d 112. Nevertheless, a lay witness may also give opinion testimony as to speed where he relates the facts on which such opinion is based. Cobb v. Coleman, 94 Ga. App. 86, 90 (2) ( 93 S.E.2d 801); Eastern Dehydrating Co. v. Brown, 112 Ga. App. 349, 351 (4) ( 145 S.E.2d 274). Here, as in Eastern Dehydrating Co. v. Brown, supra, the witness recited sufficient facts on which he predicated his opinion so that such opinion would not be a mere conclusion, hence, without probative value. See Herrington Co. v. Shumate Razor Co., 6 Ga. App. 861, 864 ( 65 S.E. 1064); Patterson v. Cotton States c. Ins. Co., 221 Ga. 878, 882 ( 148 S.E.2d 320).
Since neither plaintiff's son nor the other witness who was in the car could remember the details of the occurrence or what caused the car to overturn, the appellant urges the rule: "A person testifying in his own behalf is not entitled to a finding in his favor if that version of his testimony the most unfavorable to him shows that the verdict should be against him." Taylor v. Wilson, 109 Ga. App. 658, 662 ( 137 S.E.2d 353). While recognizing this rule, we point out that it is inapplicable where, as here, there is evidence to support the verdict other than the testimony of the party at interest. Western A. R. v. Mathis, 63 Ga. App. 172, 177 (4) ( 10 S.E.2d 457); Fowler v. Glover, 105 Ga. App. 216, 217 ( 123 S.E.2d 903); Sears, Roebuck Co. v. Wilson, 215 Ga. 746, 751 ( 113 S.E.2d 611) and cases cited.
The trial judge did not err in overruling the motion for directed verdict.
2. The petition alleged in one subparagraph that the defendant was negligent "by driving his car on an unopened and not completed State Highway of Georgia, knowing the same to be unopened and not completed, the same being gross negligence, said act being done while intoxicated and at a speed of 110 miles per hour at night." The jury inquired whether that subparagraph could be "torn apart" and each of the various charges therein considered separately or should they be considered as a whole. The judge then charged: "If you find that the defendant committed any single one of the factual elements composed in either subparagraph B or subparagraph C, or more than one of the single factual elements set forth in subparagraph B and subparagraph C, and if you further find that such of those factual elements as you find him to have committed constituted gross negligence, and you further find that this gross negligence was the proximate cause of any injury or damage which may have been sustained by the plaintiff, then in that event the plaintiff would be entitled to recover. . . In other words, for the plaintiff to recover it is not necessary that she prove all of the elements of subparagraph C, or all of the elements of subparagraph B, or both B and C. It is necessary that she prove some one or more of the factual elements that are contained in paragraphs B and C." The defendant contends that under the allegations the plaintiff must prove these elements combined to constitute gross negligence and the court erred in charging the jury that it could dissect the specification.
With this contention we can not agree. Questions of negligence and diligence, even as to gross negligence and slight diligence, are generally matters to be determined by the jury. Cobb v. Coleman, 94 Ga. App. 86, 90 (3), supra; Parker v. Johnson, 97 Ga. App. 261 (1) ( 102 S.E.2d 917). Ordinarily, a charge to the effect that the plaintiff may recover upon proof of any ground of negligence alleged in the petition is not error. See Mayor c. of Gainesville v. Haynes, 22 Ga. App. 589, 591 (1) ( 96 S.E. 349); Dowis v. McCurdy, 109 Ga. App. 488, 491 (3) ( 136 S.E.2d 389); Jones v. Parrott, 111 Ga. App. 750, 751 (5) ( 143 S.E.2d 393). From the evidence adduced, the jury would have been authorized to find that any one, two or more of the alleged negligent acts constituted gross negligence. Hence, the trial judge's charge was not error.
Judgment affirmed. Jordan, P. J., and Deen, J., concur.