Rutland, as the plaintiff, filed suit against Fuels, Inc., as defendant, in the Superior Court of Cobb County, for personal injuries and property damage arising out of a collision occurring between the plaintiff and an agent and employee of the defendant on a public highway, resulting from the negligent acts of the employee in driving a motor vehicle into and against the front of plaintiff’s vehicle. Thе case proceeded to *24 trial and resulted in a verdict and judgment in favor of the plaintiff. The defendant filed a motion for new trial, which was duly amended, thereafter heard and overruled. Thе defendant appeals from the verdict and judgment against it, and from the order of the court denying its motion for new trial as amended. The errors enumerated are, in substance, the same as the assignments of error contained in its motion for new trial as amended, and are that the trial court erred: (1) In denying a motion by counsel for the defendant to strike the hypothetical question and аnswer given by an expert witness; (2) In submitting to the jury in its charge the question of damages to plaintiff’s automobile; (3) In failing to charge a timely written request regarding the negligence of the plaintiff; (4) In failing to charge a timely written request regarding contradictory testimony; (5) In failing to charge a timely written request regarding neutralizing testimony; and (6) In denying each and every ground of its amended motion for new trial, including the general grounds which contended that the evidence was insufficient to support the verdict. Held:
1. After much colloquy and objection by counsel, the following hypothetical question, in substance, was asked of the expert witness: Based upon the facts testified to by an expert witness, a State trooper, that "knowing the positions of the vehicles on the roadway after the collision” (both thе fronts of the vehicles being three feet from the south shoulder of the road in the south lane, sitting at an angle "from debris and everything in the road,” two or three feet apart after they hit, with the rear оf both vehicles at an angle toward the north shoulder of the road both with rear wheels in the north lane), and assuming both vehicles were approaching each other from opposite directions, each traveling at approximately 45 m.p.h., and assuming the plaintiff driver proceeding westerly saw the other vehicle proceeding easterly when it was a half a car lеngth ahead of him, turned his vehicle to the left and the driver of defendant’s car proceeding easterly turned his vehicle to the right, and the two vehicles collided at the point of impact аs shown on the blackboard as placed thereon by the officer, and assuming all those facts, did the State trooper have an opinion as to what
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lane of traffic each vehiсle was in at the time the plaintiff observed the vehicle proceeding easterly toward him? The witness answered, and gave it as his opinion that the plaintiff was on his right side of the road, and the defеndant’s driver was "on the left side of the road, the north side.” This was that both vehicles were on the same side, and the wrong side of the road for the defendant’s vehicle. While the jury might feel that the answer wаs incredible, nevertheless, it is for the jury to determine whether to believe or disbelieve this expert witness, and it cannot be said that the answer was based on speculation, guesses and an hypothetical question unsupported by evidence which would require its exclusion.
Code
§ 38-1710;
Royal Crown Bottling Co. v. Stiles,
2. The pre-trial order entered in conformity to § 16 of the Civil Practice Act stated the issues as "liability and damage,” and there was no mention of special problems as to ownershiр of the car. Further, examination of the evidence shows the plaintiff testified the car damaged in the collision was owned by him, and based upon his knowledge of trading, buying and selling cars, the fair markеt value of his car before the collision was $2,300, and after, $400. There was no objection to this testimony. Hence the court did not err in giving a charge on the diminution in value of the plaintiff’s vehicle. Wе also find in the transcript an affidavit of the plaintiff’s father as one of plaintiff’s exhibits, stating that the automobile belonged to the son, although the bare legal title had been placed in the fаther because his son was under 21 years of age at the time of purchase and the father disclaimed any right, title or interest in same, and will hold Fuels, Inc. (defendant) "harmless for any further damages to said vehicle.” This evidence does not establish that the legal title was in the father when it was damaged. Counsel for appellant has not, in his brief, pointed out any evi *26 dence which did not authorize thе charge here complained of, and we will not search the record and transcript for harmful error. The error enumerated as to the charge is not meritorious.
3. Error is enumerated аs to the failure of the court to charge: "If you find that the negligence of the plaintiff was the sole cause of the accident, then the plaintiff is not entitled to recover.” (Emphasis supplied.) The court did charge the substance of this request that if "plaintiff’s injury and damage was due to plaintiff’s own negligence, and not due to the negligence of the defendant’s employee and agent, Ballew, thеn there could be no recovery for the plaintiff.” Further, the words "accident” and "collision” are not interchangeable, and the charge requested is therefore not abstractly cоrrect and might tend to confuse the jury. The court did not err in refusing to give this request. The error complaining thereof is not meritorious.
4. Error is enumerated as to a refusal of the court to give a charge regarding contradictory testimony, that is, that it would be construed most strongly against the plaintiff, and he would not be entitled to a finding in his favor if that version most unfavorable to him shows that the verdict should be аgainst him. Counsel cites
Partain v. King,
5. For the same reason as in Division 4 above, the court did not err in refusing to charge that if a party testifies to facts in one instance and also testifies that he does not know them to be true, this neutralizes his testimony and proves nothing. We do not believe a trial court is ever authorized to charge a jury in specific detail as to certain testimony neutralizing other tеstimony because, after all, what has been proven is solely and exclusively to be determined by the jury. A jury is not obliged
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to believe the testimony of a witness in each and every instance, but in determining his сredibility, may consider "all the facts and circumstances of the case, the witnesses’ manner of testifying, their intelligence, their means and opportunity for knowing the facts to which they testified, the nature of the facts to which they testified, . . . and also their personal credibility so far as the same may appear from the trial.”
Code
38-107. It has been held that a jury may believe a witness in part, and disbeliеve him in part. See
Sappington v. Bell,
6. The evidence was sufficient to support the verdict.
7. Having considered each and every alleged error enumerated here and finding no harmful error, the
Judgment is affirmed.