Opinion
31915.
DECIDED MARCH 5, 1948.
Action for damages; from Hall Superior Court — Judge Sloan. December 13, 1947.
Kenyon, Kenyon Gunter, for plaintiff.
Johnson Johnson, for defendant.
1. When there is any material conflict in the evidence, and where the evidence introduced, with all reasonable deductions and inferences therefrom, does not demand a particular verdict, it is error to direct a verdict.
( a) Questions of negligence, diligence, contributory negligence, and proximate cause are peculiarly matters for a jury, and a court should not take the place of a jury in solving them, except in plain and indisputable cases.
( b) Under all the facts and circumstances of this case, we can not say as a matter of law that the defendant was not negligent in one or more of the ways charged in the petition and that this negligence was not the proximate cause of the plaintiff's injuries, or that the evidence demanded a finding that the plaintiff's injuries were the proximate result of her failure to exercise ordinary care for her own protection; but these were issues for a jury, and the trial judge erred in directing a verdict for the defendant.
DECIDED MARCH 5, 1948.
Mrs. Winnie Mae Sears Peck sued Robert Baker in the Superior Court of Hall County, seeking to recover damages for personal injuries alleged to have been sustained as the proximate result of the negligence of the defendant. Her petition alleged, in substance, that on or about April 18, 1946, the defendant, at a point in front of the plaintiff's home on U.S. Highway No. 129, "drove his car violently against petitioner, picking her up bodily with the front of his truck, crushing her against same, and dragging her 45 feet or more along the highway and throwing her in a ditch by the side of the road, thereby gravely and permanently injuring her," as set out in detail in the petition; that the plaintiff "was lawfully on said highway and could not have avoided the collision and resulting damages by the exercise of ordinary care;" that the plaintiff had suffered and would continue to suffer from said injuries as long as she lives; that "the aforesaid injuries suffered by petitioner were caused by the gross negligence of the defendant in the following particulars: (a) in operating his car upon a public highway while it was not equipped with efficient and serviceable brakes, as required by section 68-302 of the Georgia Code; (b) in approaching petitioner, walking on a public highway, while operating a vehicle in such a way that he did not have same under immediate control as required by law; (c) in not keeping a proper lookout ahead and in grossly disregarding equal rights of petitioner, as a pedestrian, to be upon said highway, and in causing injuries to petitioner as aforesaid; (d) in operating his car upon a public highway at a speed greater than was reasonable and safe, having due regard to the condition then existing, including the width, grade, character, traffic, and common use of such highway, so as to damage life and property." The prayers of the petition were for process and judgment against the defendant.
The defendant answered, denying the acts of negligence charged against him, and alleged "that whatever injuries plaintiff suffered, if any, were the result of her own negligence solely and could not have been avoided by the exercise of ordinary care by the defendant."
On the trial, the plaintiff testified: that she crossed the highway in front of her home to meet the mailman; that she looked through her mail, and when the mailman started to leave in his automobile she walked around the mailman's car and started back across the road towards her home; and that she looked both ways when she started back across the road and did not see anything coming, and the next thing she remembered she was in the hospital. She testified as to the extent of her injuries and as to her pain and suffering. The plaintiff's father-in-law testified: that he did not see the accident, but was in his store about 200 yards away and went there immediately after it happened; that the brakes on the defendant's truck were tested by a State patrolman at the same place where the accident occurred, and it required 185 feet to stop the truck when the brakes were applied while the truck was traveling 35 miles per hour; that the patrolman told him that the brakes on the defendant's truck were no good; that they would not stop it; that he and the patrolman measured it, and it was 60 feet from a point opposite the mailbox to where Mrs. Peck was lying in the ditch, and it was 180 feet from where she was struck to where the truck stopped.
The defendant testified: He was driving a 1937 pickup Ford truck; was traveling about 35 miles per hour; and "the first thing I knew, Mrs. Peck came out from behind the mailman's car; I was so close to her and she was running when I first saw her, I couldn't stop; I did not have time to do anything. . . When I first saw her she was about the middle of the left side of the highway; I couldn't tell how far from my car; I would say less than 20 feet; anywhere from 10 to 20 feet when I first saw her; not over 20 feet, at the outside; she never did stop . . the bumper struck first; she was running with her body `kinder' thrown forward, and the right side of the radiator caught her in the body, and she `kinder' come up that way on the right side of the radiator and rolled off to the side, and she rode my truck the 60 feet mentioned; and she finally rolled on to the other side into the ditch or side of the road. . . From the time I saw her until I hit her, I just had time to put my feet on the brakes. . . I had seen Mrs. Peck out there receiving mail or something before the mailman left. I knew she was over there. . . The first I saw of her was like I told you, about the middle of the pavement. She was about the middle of the left-hand side of the pavement. I mean my left-hand side of the pavement. . . I hadn't put on my brakes until I hit her, I hadn't had no occasion to. . . I hadn't slowed up a bit. She came in there so quick, I was doing what I could."
Mr. Couch, the mailman, testified in part: "I was carrying the mail the day this accident occurred. I was driving a model `A' Ford. I saw Mrs. Peck that morning; she was at the mailbox when I drove up. I gave her a letter. I stopped there just a minute. She asked me to wait until she broke the letter to see what was in it; I waited for something like a minute, a very short time. I couldn't say whether I was entirely off the pavement or not; there were two wheels off the pavement and I couldn't say whether the other two were completely off or not; they were close to the shoulder of the road. . . I gave her the letter, and she broke the letter and took out some papers, looked like 4 or 5, and just looked through them and said, `Well, what I was looking for ain't here; I thank you very much for waiting on me,' and I believe she said she wanted to send it to her brother-in-law; says, `It is not here; I guess he had done got it,' or something like that, and I began to fix to go and she just started on around back of the car, looking at those papers. I was leaving about the same time she started around back of the car. I met Baker nearly at the same place. I imagine he was going 20 to 25 miles an hour; he was not going so fast. I didn't see the Baker truck actually hit Mrs. Peck. I couldn't say positive, but I couldn't have gone over the length of my car when I met Mr. Baker, not over twice the length of my car. The last time I seen her, she had turned through it once and was turning again as she walked off. I don't know what she did with it as she walked back to the end of my car and started across."
Grady Hughes testified in part: "I happened to be on the highway about the time Mr. Baker's truck struck Mrs. Peck. . . I was going north and Baker was coming south towards Gainesville; I was meeting him. There was an `A' model Ford the mail carrier was driving. Just as I rounded the curve south of the mailbox where the mail carrier had stopped. . . I seen his car was stopped on the right of the road, and I seen another car coming on as I rounded the curve and I noticed I was running 40 miles an hour; I slowed down just a little bit, I had another truck behind me because it seemed it was going to be a close block in there, and I checked my speed a little bit, and about that time the mail truck started off, and just as he started a lady walked right behind his car and about the time he got started these two cars met; the pickup passed the mail car. I learned later this truck was Baker's. Just as the mail car pulled off this lady walked behind the mail car with the mail in her hand, and she got right in the middle of the road and the pickup truck was right on her, I will say 8 or 10 feet of her when she seen it and I presume when he seen her, and she just made a lunge to cross the road in front of the pickup truck. The truck hit her and she seemed to be up in the air; when the truck hit her she just jumped, attempted to jump across the road, and she went up in the air, her feet went clear up to the top of the pickup, I mean higher than the pickup truck; I could see her up over the front of the pickup and she went on down the hill. I wouldn't say the truck carried her at all, it just knocked her. It knocked her up because she went clear of the truck and off the fill. . . I kept trying to direct the traffic, because it was a bad curve and cars coming both ways. . . I don't know how far Baker's truck carried Mrs. Peck from where it hit her, but my estimate would be 25 to 35 feet; it might not be over 20 feet from where she hit the car to where she hit over in the gully."
The State patrolman who was called to investigate the accident testified in part: "I examined the brakes on this [the defendant's] car, and found them in bad condition. . . I tested the brakes myself." It appeared from the evidence that the State patrolman tested the brakes on the defendant's truck by operating it along the highway at 35 miles per hour at the same place and in the same direction that the defendant had been traveling, and that when he reached the point in the highway where the plaintiff was struck, he "pushed the brakes down as far as they would go to the floor-board," and the truck traveled upgrade and around a curve a distance of 180 feet before coming to a stop, and that the truck stopped in approximately the same place it stopped after striking the plaintiff.
There was other evidence as to the manner in which the accident occurred and the extent of the plaintiff's injuries, which we do not deem necessary to set out.
The judge directed a verdict for the defendant, and the plaintiff excepted.
1. Did the trial judge err in directing a verdict? "Where there is no conflict in the evidence, and that introduced, with all reasonable deductions or inferences therefrom, shall demand a particular verdict, the court may direct the jury to find for the party entitled thereto." Code, § 110-104. But when there is any material conflict in the evidence, and where the evidence introduced, with all reasonable deductions and inferences therefrom, does not demand a particular verdict, then it is error to direct a verdict, although the evidence may preponderate very strongly in favor of the party in whose favor the verdict is directed. Wood v. Bellamy, 154 Ga. 431 ( 114 S.E. 579); Culver v. Wood, 138 Ga. 60 ( 74 S.E. 790); Green v. Scurry, 134 Ga. 482 ( 68 S.E. 77).
This was an action for damages for personal injuries based on the alleged negligence of the defendant in the operation of a motor vehicle on a public highway in this State. The defendant was driving a 1937 Ford pickup truck and was traveling south on the Gainesville-Cleveland highway. The plaintiff crossed this highway in front of her home to the mailbox on the opposite side of the road to get her mail. The mail carrier drove up in a model A Ford and pulled his car off the pavement onto the shoulder of the road at the mailbox and handed a letter to the plaintiff. He said that he stopped "there just a minute," while the plaintiff opened the letter, and as the mail man started his car and was pulling back onto the highway the plaintiff walked around back of his car and started across the road to her home. The highway was straight for about 200 yards north of the plaintiff's home and the mailbox, and after the defendant got on this straight stretch of road he saw the mailman's car standing at the mailbox and also saw the plaintiff standing there, but he did not know who she was at that time. The defendant was going south and was driving his truck, which was partially loaded, at a rate of speed of 35 miles per hour. He saw the mail carrier's car move off and gradually pull back onto the pavement, and about the time he met the mail man he saw the plaintiff crossing the road in front of him, and when he then saw her she was on the left-hand side of the pavement within about 5 feet of the center line. He said that she was running, and she said that she was walking. The defendant did not apply his brakes, but continuing on the same rate of speed the front of his car struck the plaintiff when she was on the right-hand side or right-hand portion of the pavement in front of her home. According to the evidence, the defendant did not apply his brakes or slacken the speed of his car from the time he first saw the mail carrier's car and the plaintiff standing at the mailbox until his car collided with her as she was crossing the road on the way back to her home. He testified that he stopped his truck as soon as he could, but the evidence shows that he traveled up grade and around a curve for about 180 feet after striking the plaintiff before he stopped his car.
The Code, § 68-302, provides that "every motor vehicle . . while in use or operation upon the streets or highways, shall at all times be provided and equipped with efficient and serviceable brakes." One of the grounds of negligence charged against the defendant was that he was operating his car in violation of this provision of the statute. The evidence in this respect was conflicting, but the jury would have been authorized to find that his truck was not equipped with efficient and serviceable brakes.
"Upon approaching or passing any person walking in the roadway, or traveling any public street or highway . . the operator of a motor vehicle . . shall at all times have the same under immediate control." Code § 68-304. The plaintiff charged the defendant with a violation of this statute. Can it be said as a matter of law, under the evidence in this case, that the defendant had his car under immediate control at the time and place of the collision? "A pedestrian and a person with an automobile have each the right to use the public highway, but the right of an operator of an automobile upon the highway is not superior to the right of the pedestrian, and it is the duty of each to exercise his right with due regard to the corresponding rights of the other." O'Dowd v. Newnham, 13 Ga. App. 220 ( 80 S.E. 36); Sprayberry v. Snow, 190 Ga. 723, 728 ( 10 S.E.2d 179). Whether the plaintiff was walking across the highway, as she contended, or was running across the highway, as contended by the defendant, was an issue of fact for the jury, since the evidence as to this was sharply conflicting. While the defendant testified that he did not see the plaintiff until she was near the center of the left-hand side of the highway, it does not appear that he could not have seen her earlier, if he had been keeping and maintaining a constant and vigilant lookout ahead of his truck as he proceeded along the highway. While the speed of 35 miles per hour, at which the defendant testified that he was operating his truck, was not such a speed as would constitute a violation of law, whether or not it was a rate of speed greater than was reasonable and safe, considering the width, grade, character, traffic, and common use and condition then existing on said highway at that time and place, was also an issue of fact for a jury, under the pleadings and evidence of this case. See Code § 68-301.
It is contended by the defendant in error that the evidence demanded a finding that the plaintiff was guilty of such a want of due care for her own preservation and safety as would preclude a recovery by her of the defendant. We think that this was also an issue for a jury. The plaintiff testified that she looked both up and down the highway before she attempted to cross it, and did not see any approaching vehicle. While the defendant testified that he did not see her until she was within 20 feet of his truck, whether he should have seen her earlier and taken such precautions to avoid injuring her as would meet the requirements of ordinary care was likewise an issue for the jury. "Questions of negligence, diligence, contributory negligence, and proximate cause are peculiarly matters for the jury, and a court should not take the place of a jury in solving them, except in plain and indisputable cases." Eubanks v. Mullis, 51 Ga. App. 728, 730 ( 181 S.E. 604).
Under all the facts and circumstances of this case, we can not say as a matter of law that the defendant was not negligent in one or more of the ways charged in the petition, and that this negligence was not the proximate cause of the plaintiff's injuries, or that the evidence demanded a finding that the plaintiff's injuries were the proximate result of her failure to exercise due care for her own preservation and safety, but these were issues for a jury. We think that the trial judge erred in directing a verdict.
Judgment reversed. Felton and Parker, JJ., concur.