Opinion
39738.
DECIDED SEPTEMBER 20, 1962. REHEARING DENIED DECEMBER 18, 1962.
Action for damages. Bartow Superior Court. Before Judge Davis.
William A. Ingram, for plaintiff in error.
Cullins Lancaster, J. R. Cullins, Ben Lancaster, contra.
While violation of a city speed ordinance does constitute negligence per se, that alone is not sufficient to support a charge of gross negligence.
DECIDED SEPTEMBER 20, 1962 — REHEARING DENIED DECEMBER 18, 1962.
Plaintiff, Mrs. Pruitt, sued Mrs. Tatum (her twin sister) and her husband, Mr. Tatum, the driver and owner respectively of a car in which she was riding as a guest when injured as a result of an intersection collision in Cartersville, alleging gross negligence, and sued Mrs. Waldrop, the driver, and her husband, the owner of the other vehicle involved, alleging ordinary negligence. Upon the trial it appeared that the intersection was controlled by a traffic signal which, when it changed lights, went from green to yellow to red on one side while going from red to yellow to green on the other, and that in the course of the change the yellow light faced both directions at the same time. The traffic light was unusual in that for about four seconds the green light remained on while the yellow was on, and likewise the red light came on before the yellow went off.
Plaintiff testified that her sister approached the intersection while the light was still green and that "we had green and caution when we went under that light. . . I was sitting on the right-hand side, in the front seat . . . If I had been driving . . . I don't know of a thing in the world that I could have done that she didn't do. . . I don't guess I could have done any better than she did . . . My sister was driving in the usual and ordinary way, at the usual and ordinary speed; there was nothing unusual about her driving in any way. I suppose she was driving about the same way I would have drove if I had been driving . . . No, I didn't say anything to her about slowing up. I didn't see any excuse for her to slow up, I didn't see the approaching car." She further testified that her sister was driving at a speed of from 25 to 30 miles per hour (the speed limit being 25 miles per hour), that the defendant, Mrs. Waldrop, drove the other car into the right side of her sister's vehicle about the center of the intersection, causing the sister to lose control of it "which she tried to handle and couldn't," that the car then collided with a telephone pole, and that she received certain injuries in the accident.
The sister, Mrs. Tatum, testified: "I don't think I was going over 15 or 20 miles per hour . . . just as I came under the light it was green and changed to caution . . . just as I got under it, it turned to caution and that is when the car (Mrs. Waldrop) hit me . . . I could not see the (Waldrop) car over on West Avenue as it was approaching the intersection . . . As to whether I speeded up a little bit to get on through the intersection when I saw the light changing, I don't know. . ."
Mrs. Waldrop testified: "As I approached the intersection there when I first saw the Tatum vehicle, as to whether or not I can give an estimate of its speed at that time when it first came into the intersection; well, I waited for the light to turn, the green signal for me to start off, and I would estimate her speed between 30 and 35. She never evidenced hitting her brakes or slowing down any at all, she just came right on. At the time I started through the intersection the light was green for me. As to whether or not we collided there about the center of the street; well, no sir, it was not the center of the street; I was a little out into the intersection, but I was not under the traffic signal . . . No sir, I couldn't see her car very long before it came into the intersection, that is kindly a blind intersection, there is a high bank there four or five feet high, and a fence on top of that. . ."
At the conclusion of the evidence counsel for Mr. and Mrs. Tatum moved for a directed verdict as to them. The motion was denied, and the jury returned a verdict against all defendants for $5,000. On behalf of Mr. and Mrs. Tatum counsel filed a motion for a judgment non obstante veredicto and for new trial. To a judgment overruling both they here except.
We can find nothing in the evidence to support a finding of gross negligence against the Tatums. The only act of negligence supported, as we see it, is a possible exceeding of the city speed limit. That alone is not enough. Southern R. Co. v. Davis, 132 Ga. 812, 817 ( 65 S.E. 131); Peavy v. Peavy, 36 Ga. App. 202, 205 ( 136 S.E. 96); Hopkins v. Sipe, 58 Ga. App. 511, 513 ( 199 S.E. 246); Fletcher v. Abbott, 92 Ga. App. 364, 370 ( 88 S.E.2d 445) (dissenting opinion).
Accordingly, the trial court erred in denying the motion for judgment non obstante veredicto and the judgment is reversed with direction that a judgment non obstante veredicto be granted as to plaintiffs in error.
Judgment reversed with direction. Carlisle, P. J., and Russell, J., concur.