In this nеgligence case, involving a rear-end collision, defendants Atlanta Coca-Cola Bottling *363 Company (hereinafter referred to as "company”) and Jerry Lee Byrd (hereinafter referred to as "driver”) assign error upon the triаl court’s directed verdict for the plaintiff on the issue of liability, the jury’s verdict for the plaintiff in the amount of $35,000, and the trial court’s overruling of defendant’s motion for a new trial on various grounds.
The circumstances surrounding the collision were described by the plaintiff and witness Baxter. Defendants’ truck was traveling about one and one-half or two car lengths behind plaintiffs vehicle in the left-hand lane of a three-lane expressway. Both vehicles were going approximаtely 55 miles per hour when a truck in the opposite lane struck the guard rail, sending a large metal object across the highway and in front of plaintiffs vehicle. Plaintiff took his foot off the gas pedal and was then struck from the rear by defendants’ truck. Defendant-driver received a citation for following too closely and subsequently pleaded guilty to this charge in traffic court. Company admitted the agency relationship in its pleadings and defendants presentеd no evidence at trial. Held:
1. Defendants assert that plaintiffs motion for a directed verdict was improvidently granted, in that factual issues remained concerning defendant-driver’s negligence, plaintiffs contributory negligence, and defеndants’ pleaded defenses of unavoidable accident and sudden emergency. While questions concerning negligence "are peculiarly matters for the jury, and a court should not take the place of the jury in solving them, except in plain and indisputable cases”
(Powers v. Pate,
Was there any evidence from which the jury might reasonably have concluded that defendant-driver was not negligent? From plaintiffs testimony concerning the
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speed at which he was traveling and the distance at which the Coca-Cola truck was following, the jury could only have concluded that defendant-driver was negligent in following too closely. In addition, driver’s plea of guilty to the charge of following too closely, Section 63(a) of the Uniform Act Regulating Traffic on Highways (Ga. L. 1953, Nov. Sess., pp. 556, 585; Code Ann. § 68-1641, repealed by Ga. L. 1974, pp. 633, 691, but in effect for the purpose of this case) operates as an "admission against interest” and is a significant factor in determining negligence. See
Johnson v. Curenton,
In arguing that its negligence was not conclusively shown, defendants rely upon witness Baxter’s testimony that the Coca-Cola truck "was in good stopping distance.” This statement, however, was in response to a question concerning the relative distances of the two vehicles at the time when the witnеss first saw the truck. Even if we assume that this statement relates to that time immediately preceding the collision, it merely suggests an alternative theory of defendant-driver’s negligence. See Code Ann. § 68-1626.
"If, considering all the surroundings and accompanying circumstances, an event is such as in the ordinary course of things would not have occurred if the defendant had used ordinary care, negligence may be presumed, and place upon the defendant the burden of explaining the cause of the occurrence.” McCann v. Lindsey,109 Ga. App. 104 (135 SE2d 519 ). Since the defendant-driver offered no legal reason or excuse for his failure to avoid colliding with the rear of plaintiffs vehicle, no factual issue remained with respect to his negligence.
Was there any evidence from which the jury might reasonably have concluded that plaintiff was contributorily negligent? Defendants rely upon Section 69 (c) of the Uniform Act Regulating Traffic on Highways (Ga. L. 1953, Nov. Sess., pp. 556, 587; Code Ann. § 68-1647 (c), repealed by Ga. L. 1974, pp. 633, 691, but in effect for the purposes of this case), which provides that, "No person shall stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal in the *365 manner provided herein to the driver of any vehicle immediately to the rear when there is opportunity to give such signal.” (Emphasis supplied.) While the evidence indicates that plaintiff did "suddenly decrease” the speed of his vehicle, there is nothing to indicate that hе had any opportunity to give the appropriate signal. To the contrary, the record clearly shows that a large metal object "suddenly” flew in his path.
Defendants further argue that the jury may have inferred contributory negligenсe based upon the provisions of Section 55 (b) of the Uniform Act Regulating Traffic on Highways (Ga. L. 1953, Nov. Sess., pp. 556, 581; Code Ann. § 68-1633 (b), repealed by Ga. L. 1974, pp. 633, 691, but in effect for the purposes of this case). This Section provides that "any vehiclе proceeding at less than the normal speed of traffic at the time and place and under the conditions then existing shall be driven in the right-hand lane then available for traffic...” There was no evidence tending to show that plaintiffs speed of 55 miles per hour was in any way "less than the normal speed of traffic”; nor does the record disclose that the lanes to his right were "then available.” Defendants’ reliance upon this statute is therefore misplaсed.
The cases relied upon by defendants’ counsel are distinguishable from the factual situation presented herein. In
Hay v. Carter,
The issue presented here by defendants is controlled rather by thе principles enunciated in
Sutherland’s Eggs, Inc. v. Barber,
Left to be considered are defendants’ pleaded defenses of unavoidable accident and sudden emergency. "The principle of law relating to the theory of accident can оnly apply when under some theory of the case the injury is the result of the negligence of neither of the parties, but
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is amere casualty due to the negligence of no one.”
Harper v. Hall,
Defendants’ defense of sudden emergency is likewise without merit. The doctrine of emergency "refers only to those аcts, either of the plaintiff or the defendant, which occur immediately following the realization of the peril or crisis and before there is time for mature reflection.”
Stripling v. Calhoun,
Since the evidence unequivocally showed defеndant-driver to be negligent and since none of the defenses offered raised a genuine issue of fact, we hold that the trial court’s grant of plaintiffs motion for a directed verdict on the issue of liability was proper.
2. Defendants аssert that the trial court erred in permitting plaintiff to amend his complaint with respect to damages on the day of the trial. Our Civil Practice Act allows a party to amend his pleading "by leave of court or by written consent of thе adverse party; and leave shall be freely given when justice so requires.” Code Ann. § 81A-115 (a). Plaintiffs amendment involved only the amount of damages, and defendants have failed to demonstrate how they might have been prejudiced or burdеned in their defense by its allowance. No motion for a continuance was made and defendants proceeded to trial without objection. Under these circumstances, we cannot say that the trial court abused its discrеtion in permitting plaintiff to amend his complaint.
3. Defendants assert that the jury’s verdict in the amount of $35,000 is not based upon sufficient medical testimony and is so excessive as to suggest mistake, *368 prejudice, and undue bias by the jury. We cannot agree. Plaintiff presented extensive testimony from four doctors, each of whom was thoroughly cross examined by defendants’ counsel concerning the nature and severity of plaintiffs injuries. Their testimony indicated that plaintiff’s back injury was оf a serious nature, that further medical treatment including hospitalization would be required, that the injury was accompanied by severe pain and suffering, and that the injury might be permanent. Plaintiff also testified as to his injuries, his pain and suffering, and his inаbility to perform physical tasks which he was able to perform prior to the collision with defendants’ truck.
On appeal the evidence is to be construed to sustain, rather than to destroy the verdict, for every presumption аnd inference is in its favor.
Y. M. C. A. v. Bailey,
Defendants’ remaining enumerations of error are without merit.
Judgment affirmed.