Opinion
39821.
DECIDED NOVEMBER 27, 1962.
Action for damages. Jackson Superior Court. Before Judge Russell.
L. D. Burns, Jr., Floyd G. Hoard, for plaintiff in error.
Erwin, Birchmore Epting, Eugene A. Epting, contra.
Where the only allegation of negligence is wholly unsupported by the evidence, a nonsuit is proper.
DECIDED NOVEMBER 27, 1962.
Plaintiff (plaintiff in error) was proceeding east on U.S. Highway 29 in Statham, Ga. Defendant Johnson (defendant in error) was proceeding west followed by a car owned by defendant Wayne Wages and driven by defendant Barbara Wages. Johnson's general demurrer was held improperly sustained on a prior appeal. See Robertson v. Johnson, 104 Ga. App. 387 ( 121 S.E.2d 829), where the pleadings are fully set out. The only negligence alleged against Johnson was that he ". . . suddenly and without warning decreased the speed of his automobile and suddenly stopped the said automobile without first giving proper signal of his intention to do so in violation of Ga. Code Sections 68-1647, 48 and 49, same constituting negligence per se." (Emphasis added).
The court granted a nonsuit as to Johnson and the plaintiff took a mistrial as to the remaining defendants. Exception is to the nonsuit.
The only question presented here is whether plaintiff proved his case as laid against the defendant Johnson. Code § 110-310. The gist of Johnson's alleged negligence was that he failed to give a proper signal of his intention to stop. The only witness on the trial was plaintiff himself. In the factual context presented, it would be physically impossible for plaintiff, who was facing Johnson's car, to swear that Johnson's brake lights did not work and he admitted that he could not have seen the signal if given. Barbara Wages, driver of the vehicle following Johnson, was not called to testify.
Where there is nothing to support the only allegation of negligence, a nonsuit is proper and it is not necessary to consider the statutory interpretation of Code Ann. § 68-1647 advanced by plaintiff dealing with a possibility that defendant may have given a signal indicating an intention to turn off the road to the right, as well as one indicating an intention to stop, at the same time.
Judgment affirmed. Carlisle, P. J., and Russell, J., concur.