Opinion
36614.
DECIDED JUNE 11, 1957. REHEARING DENIED JUNE 25, 1957.
Tort; truck collision. Before Judge Brown. Monroe Superior Court. December 17, 1956.
W. B. Freeman, Martin, Snow Grant, for plaintiffs in error.
W. Buford Mitchell, Holliman, Adams Dallas, S. Gus Jones, Neal D. McKinney, contra.
The trial court did not err in denying the defendants' motion for judgment non obstante veredicto inasmuch as the verdict for the plaintiff was authorized by the evidence.
DECIDED JUNE 11, 1957 — REHEARING DENIED JUNE 25, 1957.
Mrs. Virgil A. Smith sued Eddie James Shannon and Vaughn Planing Mill Company, a partnership composed of A. L., Fred and T. B. Vaughn. The petition as amended alleged: "3. Petitioner shows that during the early morning of August 11, 1955, her husband, Virgil A. Smith, was driving his pick-up truck easterly on State Highway 36, which is known as the Thomaston-Barnesville Road, and that he proceeded along said highway to a point approximately 6 miles westerly from Barnesville, in Upson County, Georgia, to a dirt road which intersects said paved highway, whereupon petitioner's husband turned his pick-up truck left off of the paved highway onto said dirt road and was proceeding in a northerly direction along said dirt road when defendant Shannon drove a lumber truck, belonging to said Vaughn Planing Mill Company, off of said paved highway while traveling in a westerly direction striking petitioner's husband's truck broadside thereby causing bodily injuries to petitioner's husband from which he died. 5. Petitioner shows that the said Eddie James Shannon, at said time and place, was acting for said Vaughn Planing Mill Company and about their business and was acting in the scope of his employment. 6. As a result of the negligence of the said Eddie James Shannon, acting as aforesaid, petitioner's husband sustained bodily injuries from which he died on August 11, 1955. 9. The negligence of Eddie James Shannon, acting as aforesaid, was the proximate cause of petitioner's husband's death and he was negligent in the following particulars: (a) In driving into and against petitioner's husband's vehicle under the circumstances herein alleged. (b) In failing to have the truck he was driving under control as herein alleged. (c) In failing to keep a proper lookout as herein alleged. (d) In failing to give any warning as herein alleged. (e) In failing to slow down or stop the truck as herein alleged. (f) In driving at a high and negligent rate of speed, in excess of 60 miles per hour, as herein alleged. 10. Petitioner shows that the said collision took place at approximately 4:50 a. m. on a public dirt road, which was approximately 18 feet in width. Petitioner further shows that her husband had traveled approximately 25 feet in a northerly direction on said dirt road when his 1955 Ford pick-up truck was struck by said lumber truck. 11. Petitioner shows that said paved highway is approximately 20 feet in width and is straight from a point where said dirt road intersects said paved road for several hundred feet easterly. Petitioner further shows that defendant Shannon drove said lumber truck off the right-hand side of the paved highway on to the dirt shoulders at a point approximately 263 feet easterly from where said lumber truck collided with petitioner's husband's pick-up truck and he continued off of said paved road to the point of impact."
The defendants denied all of the allegations of the petition except the one alleging the age of the deceased, and it was neither admitted nor denied. After verdict and judgment for the plaintiff, the defendants moved for a judgment notwithstanding the verdict in accordance with their motion for a directed verdict. The defendants here except to the denial of the motion for a judgment notwithstanding the verdict.
Eddie James Shannon, driver of the partnership's tractor-trailer truck, called by plaintiff for cross-examination testified in substance: that he was driving the truck which collided with a pick-up truck between Barnesville and Thomaston on August 11, 1955; that he did not tell anyone at the scene of the accident shortly after the collision that he never did apply the brakes; that the pick-up truck with which he collided broadside had already made a left turn and was proceeding in a northerly direction toward the railroad when he collided with it; that the back end of the pick-up was eight or nine feet from the edge of the pavement; that he did not blow his horn; that the trailer of the truck he was driving had no brakes; that he made about two trips a day over the road for several months prior to the collision, back and forth, hauling lumber; that his truck got completely off the highway about 75 feet from the point of collision.
Trooper O. B. Evans, for plaintiff, testified: that he was called to the place of the collision; that he measured where the right wheels of defendants' truck first went off the pavement, and they went off 263 feet from the point of the collision prior to the collision; that the defendant's truck went forty-four feet after the impact from the point of impact; that it was twenty-eight feet from the center line of the paved road to the point of impact; that there were no skid marks near where the paved road intersected with the dirt road leading from the paved road to the railroad tracks; that the pavement is twenty feet wide; that the usable part of the shoulder from the 263-foot mark was approximately eight feet; that the ditch which ran off from the sloping shoulder was approximately five feet deep; that there were no road signs or markings indicating the cross-road; that the road surface was dry but the shoulders were a little wet from a rain; that the grass on the shoulder was damp; that he believed the grass was a few inches high; that the right front wheel of the Vaughn truck hit a culvert and was knocked off; that it would have been practical but difficult to pull the Vaughn truck back onto the pavement after all four wheels got on the shoulder; that it was dark on the morning of the collision at 5:02; that at the scene he could see no evidence indicating that brakes had been applied; that too much brakes would have thrown the tractor but some brakes could have been applied; that the pole trailer in use by the Vaughns is the type of vehicle commonly used by lumbermen in this area; that there are no brakes on the trailer end of the truck; that you hardly ever see one with brakes on it; the truck weighed less than ten thousand pounds empty.
Alton Perdue, for plaintiff, testified: that he asked the driver of the Vaughn truck how in the world the wreck happened with both trucks off the highway and the driver stated that he was coming down the road and he saw the car coming and that it looked like the lights were pulling over on his side of the road and he decided to give him all of the highway and he pulled off the highway with all four wheels; that he said he did not apply the brakes; that he could not see where the brakes were applied; that the lumber truck was twenty or twenty-five feet from the point of collision; that he would estimate that the lumber truck left the pavement two hundred feet from the point of collision; that there was grass on the shoulder, not so high; that the culvert was the ditchline.
Hartley Barren testified for the plaintiff: that, approximately 260 feet from the point of collision, the lumber truck first began to leave the pavement; that he did not measure where the left truck wheels first went off the pavement.
Eddie James Shannon, defendant, testified: that the Ford tractor-trailer he was driving had hydraulic brakes on the tractor and no brakes on the pole trailer; that the brakes were in good condition having been checked Saturday before the accident; that the lights on the approaching truck first showed up after he was coming down the crest of the hill going down toward the crossing; after the truck approached, it came around the curve and then got completely on his side of the road; that the witness had his bright lights on, dimmed them when he saw the car approaching; that the approaching truck had its bright lights on and they were never dimmed; that the approaching truck gave no signal for a left turn; that it seemed that the oncoming truck was going to stay on the wrong side of the road; that witness got off the highway; that there was grass on the shoulders and he tried to put on the brakes but it seemed that the truck was going to start wiggling and turn over and he therefore left off the brakes; that he put them on just a little bit after the first time; that the grass was wet and the ground underneath was a little wet; that the grass was slick and the wheels would slide; that he did not pull to his left because he was afraid the oncoming truck might be pulled back to its side and then witness would be in the wrong place; that he knew of no crossing there; that after he got all four wheels off the pavement he did not see the pick-up truck's driver make a left turn and he supposed the reason was that the two trucks' lights came together and just as the other truck turned across, the trucks collided; the pick-up truck was about eight or nine feet into the crossing when witness collided with it; that witness's truck hit the middle of the pick-up; that he was driving fifty miles per hour; it seemed that the Smith truck was going as fast as witness was driving or faster.
Mr. Lee Vaughn, defendant, testified: that the defendants' tractor weighed 4625 lbs. and the trailer weighed 1800 lbs.; that the Smith truck weighed about 3125 lbs.; that the last wheel of the tractor-trailer went off the pavement 162 feet from the point of the collision; that if you apply brakes hard enough on wet dirt or grass, the wheels skid, worse than if you put them on lightly.
Joe Munn testified for the plaintiff: that in his opinion at the time of the impact from the damages done he did not believe the tractor-trailer of defendants could have been going less than seventy miles per hour; that he did not know the weight of the vehicles involved.
The above shows the facts testified to which are necessary for a decision.
1. In our opinion the testimony of the defendant Eddie James Shannon, the driver of the tractor-trailer, and the only eyewitness to this tragedy that testified, was alone sufficient to have authorized the jury's verdict in this case. The defendant Shannon testified to facts that would indicate that he traveled approximately 612 feet, after seeing the plaintiff's husband, the deceased driver of the pick-up truck move from the right lane to the left lane of the highway when the plaintiff's husband was only 124 feet away from the intersection of the two roads which proved to the jury with mathematical certainty that the defendant Shannon was traveling considerably faster than the plaintiff's husband. This difference in the speed of the two vehicles, coupled with pictures of the demolished pick-up truck and other physical facts and circumstances furnished the jury with ample evidence upon which to found its verdict.
2. The uncontradicted evidence shows that the trailer had no brakes. Although it was not negligence per se to operate the trailer without brakes, the conclusion is unavoidable that not to have brakes on a motor vehicle is a factor that the jury might have considered contributed materially to the driver's inability to keep the vehicle under immediate control, particularly where, as in this case, there is evidence that the tractor-trailer was traveling not less than seventy miles an hour at the time of the impact. The evidence shows further that the tractor-trailer hit the pick-up truck after it had completed its left turn into the dirt road and in fact had traveled north along the dirt road for a distance of some 25-30 feet when the tractor-trailer hit it broadside and while traveling west, and the trailer-tractor having begun leaving the paved portion of the highway 263 feet east of the intersection of the two roads, and continued to travel after the impact an additional 44 feet before finally coming to rest on its side out in a field.
3. Moreover Eddie James Shannon was subject to being impeached. "Where a witness has been impeached by prior contradictory statements the weight and credit to be given all or any part of his testimony is for the jury, who are authorized to believe a part and disbelieve other parts of the testimony of such witness." A. C. L. R. Co. v. Heyward, 82 Ga. App. 337 (4b) ( 60 S.E.2d 641). Thus the jury could have disbelieved that part of the testimony of the defendant Shannon wherein he testified that the turn indicator on the Smith pick-up truck was not on and also disbelieved that portion of Shannon's testimony wherein he testified that the Smith pick-up truck was on the wrong side of the road. Contrarily to disbelieving all of Shannon's testimony, although impeached, the jury could have believed under the evidence in this case that the defendant Shannon was negligent in that he did not apply his brakes, drove without brakes on the trailer and operated his tractor-trailer at seventy miles an hour and that he drove his tractor-trailer completely off the pavement 162 feet from the point of collision, after having lost control of his vehicle. Knowledge of the intersection was imputable to Shannon because of his own testimony, which the jury had a right to believe. He stated that he had traversed this particular road at this particular place twice a day for several months prior to the collision. Even had the jury believed that Smith, the driver of the pick-up truck was guilty of negligence and was violating one or more of the State statutes as contended by the plaintiffs in error it still would be a question for the jury. It is too well settled to require citation that questions of what negligence as well as whose negligence constituted the proximate cause are for the jury's determination.
We think it apparent from the evidence that if Shannon had not been driving too fast and had been in control of the tractor-trailer at the time he could in the exercise of ordinary care have stopped his vehicle and have avoided the collision altogether.
Judgment affirmed. Gardner, P. J., Townsend,- Carlisle, and Quillian, JJ., concur. Felton, C. J., dissents.
1. Under no theory was the jury authorized to find in favor of the plaintiff in this case and the court therefore erred in denying the motion for a judgment notwithstanding the verdict. If the jury believed all of the testimony of Eddie James Shannon, the driver of the partnership's trailer truck, and the only eyewitness, the evidence conclusively showed that the only negligence with which the defendants could be charged was that the truck was being driven without brakes on the trailer and this cannot be reasonably said to have been a contributing proximate cause of the collision.
2. If the jury believed all of Eddie James Shannon's testimony except that contradicted by other witnesses and circumstances, the items of negligence against the defendants would have been that he did not apply his brakes, drove without brakes on the trailer and operated his truck at seventy miles per hour. The jury could have also found that he drove his truck completely off the pavement 162 feet from the point of collision but that went to the matter of impeachment and did not show negligence. In this view the negligence of the defendants could not reasonably be said to have been a contributing proximate cause of the collision. Without a knowledge of the intersection and without any warning of a left turn, the defendants owed the driver of the Smith truck no duty whatsoever which he did not perform because Eddie James Shannon could not have anticipated a sudden left turn in front of him under the circumstances.
3. If it can be said that the impeachment of Eddie James Shannon was successful and that the jury disregarded all of his testimony, we are left with the physical facts and circumstances from which no intelligent and logical conclusion could be reached. It is too well known to require citation that where circumstantial evidence points with equal consistency to two opposing theories, one showing liability and one lack of liability, the party having the burden of proof cannot prevail. The two most plausible theories to be deduced from the circumstances alone are (1) that the defendants' truck struck the Smith truck while the latter was standing still in the dirt road intersection, and (2) that the Smith truck turned into the intersection to the right or left and was struck by the defendants' truck. In the first theory, the conclusion of the defendants' negligence would be authorized; in the second it would not because the fact of collision is not aided by presumption of law or permissible inference under the doctrine of res ipsa loquitur. The fact that the defendants were guilty of negligence in lack of brakes on the trailer and illegal speed would not authorize the inference that one or both were contributing proximate causes of the collision. The plaintiff is not required to prove lack of negligence in the first instance, but to make out a prima facie case she must prove facts to show not only that the defendants were negligent but that such negligence was the proximate or one of the proximate causes of the injuries sued for. There are no circumstances here which authorize a rational conclusion that under the second theory the negligence of the defendants contributed proximately to the collision. The effect of any other ruling would apply a presumption of proximate cause from proof of negligence or apply the rule of res ipsa loquitur to permit a finding of proximate cause from the mere fact of negligence.
In my opinion a verdict was demanded for the defendants, and the court erred in denying the motion for a judgment notwithstanding the verdict.