Appellee Durga’s right foot was run over by the wheel of an automobile operated by appellant Feinberg. Ms. Feinberg had just picked up her younger brother from a Columbus, Georgia, junior high school and was preparing to exit from the school driveway when Durga stepped from the curb and apparently ran into the side of the moving vehicle. The impact knocked him to the ground, and he sustained minor injury to his forehead and left leg, in addition to extensive injuries to the metacarpal bones and other areas of the right foot. The action below ensued.
Both defendant/appellant Feinberg and her brother testified at trial that their car was moving slowly at the time of the accident and that they did not see Durga until just at or just after the moment of impact; Durga testified that he had looked to both left and right before leaving the curb, as was his habit, and had seen no moving cars but had heard a “jack-rabbit start” as he stepped into the drivéway. An assistant principal standing in an open breezeway near the driveway testified that he saw Durga, as the latter was stepping off the curb, turn in the direction opposite to that from which the Feinberg automobile would have been visible and wave to another school official with whom he had been talking just prior to the accident. The assistant principal further testified that the Feinberg automobile was traveling at approximately 10 miles per hour and that he had heard no sound like a car “being gunned or floored.”
Another witness, a long-time friend and co-worker of Durga’s, testified that it was Durga’s fixed habit to look both left and right before stepping into a roadway. An investigating officer testified that *734 there was evidence that someone or something had come in contact with the right front fender of the Feinberg vehicle and had wiped the dust off, but that he had found no evidence, in the form of wiped-off dust or otherwise, of contact on the front or other parts of the car. The officer also testified that, on the basis of the evidence (e.g., no skid marks, the fact that the car had stopped only about 15 feet beyond the point of impact), he would estimate the car’s speed at 8-10 miles per hour. Durga, on the other hand, testified that prior to the accident he had seen several vehicles sitting in a stationary position approximately 125 feet distant, and that during the approximately two seconds required for him to take two steps after leaving the curb, the car which struck him had apparently traveled that distance from a “jack-rabbit” start, at a speed of perhaps 50 miles per hour; that this was the only basis on which he could estimate Feinberg’s speed because he had not seen the vehicle in motion prior to an instant before the impact; and that at that moment he had seen a headlight “out of the corner of [his] eye.” Durga offered no evidence tending to identify the Feinberg automobile as the source of the sounds which he had interpreted as a “jack-rabbit start.”
The trial court denied defendant/appellant’s motion for directed verdict on the basis that there were genuine issues of material fact requiring jury resolution. The jury found for plaintiff/appellee in the amount of $100,000. Feinberg moved for j.n.o.v. and subsequently for new trial, alleging (1) that Durga’s friend’s testimony regarding the former’s caution upon entering a roadway was inadmissible, and (2) that the trial court had erred in failing to give certain requested jury instructions. Upon denial of the motion for new trial, Feinberg appealed to this court, enumerating as error, in addition to the general grounds (enumerations 3, 4, 5), the denial of her motions for directed verdict and j.n.o.v., alleging that Durga had failed to carry his evidentiary burden (enumerations 1, 2); the denial of the motion for new trial on the basis of the trial court’s failure to give jury instructions on the doctrines of sudden appearance and emergency (enumerations 7, 8) and the doctrine of contributory negligence (enumeration 9).
1. We find devoid of merit appellant’s seventh, eighth, and ninth enumerations, which contend that the trial court erred in denying the motion for new trial despite having allegedly failed to give certain jury instructions. Examination of the record indicates that the evidence did not authorize instructions on the doctrines of emergency and sudden appearance.
Central of Ga. R. Co. v. Brower,
*735 2. Appellant contends that appellee failed to carry his evidentiary burden and that the trial court therefore erred in denying her motions for directed verdict and for j.n.o.v. OCGA § 9-11-50 (a) prescribes that, in order for a directed verdict to be mandatory on the trial court, “the evidence . . . shall demand a particular verdict.” (Emphasis supplied.) Scrutiny of the transcript reveals that appellee carried his evidentiary burden sufficiently to withstand the motion. This enumeration is without merit.
3. In her sixth enumeration appellant alleges that it was error for the trial court to deny the motion for new trial based on the admission of testimony regarding Durga’s habit of looking both ways before entering a roadway. The witness, a long-time friend and colleague, testified that he and Durga had regularly left work together for two years, and that in all that time appellee had never once failed to look in both directions before crossing the street that lay between the workplace and the lot where they parked their cars.
Appellant contends that Georgia’s rules of evidence prohibit the introduction of evidence of actions or omissions on previous occasions as probative of what occurred on a particular occasion. In
Whidby v. Columbine Carrier,
“However, the rule is well established that a witness may testify to his own fixed habits and customs.”
Thomas v. Neuman Hosp.,
Such testimony may be provided not only by the actor himself, but, in certain circumstances, by others in a position to know his habits. In
Stripling v. Godfrey,
Scrutiny of the case law indicates that the admissibility of such testimony by persons other than the actor is almost always confined to cases in which the actor has died; otherwise, only the testimony of the actor himself regarding his habit or custom is admissible. See
Stephen W. Brown &c. v. Gowers,
In the instant case the issue is plaintiff/appellee’s habit vel non of looking both ways before entering a roadway — the act which he was doing at the time of his injury. Durga himself testified that it was his fixed habit to look both ways. The challenged witness testified unequivocally that not only on every occasion when he and Durga left work during a two-year period, but consistently on other occasions in and about Columbus and even when they went on vacation together, *737 “He always looked before he walked, always.” In sharp conflict is the testimony of other witnesses, cited supra, regarding the movements of Durga himself and of the vehicles present in the driveway.
In the light of the authorities cited, supra, and after careful consideration of the possible ramifications of a rule that would permit strangers to the action to testify regarding the habits and customs of another, whether or not the actor were dead or otherwise unavailable, we are persuaded that the better rule, in cases where the actor is available, is that stated in Stephen W. Brown &c. v. Gowers, supra at 783: “A witness may testify as to his fixed and uniform habit in such cases but not as to the habit and customs of another.” Were we to hold otherwise, the trial courts would be thronged by friends, relatives, and colleagues lining up to testify concerning a particular party’s habits, and we would think ourselves transported back to the not-so-good old days when the outcome of a case could be decided by the number (and even the rank) of the witnesses each side could produce. In the instant case, for example, what would there be to prevent appellant and her brother — and conceivably a host of others — from swearing that looking before she left the curb, and moving at a nominal speed, was her fixed and immutable habit? Admission of the friend’s testimony was error, and we must therefore reverse the judgment below.
4. Having found reversible error, we do not address appellant’s enumeration of the general grounds.
Judgment reversed. Carley, J., concurs. Sognier, J., concurs in the judgment only.