111 Ga. App. 718 | Ga. Ct. App. | 1965
The general grounds of the motion are without merit. There was ample evidence to support the verdict.
In special ground 4 of the amended motion error is assigned upon the failure of the court to charge, without request, that the negligence of the host driver, if any, was not imputable to the plaintiff who was a guest in the car. Imputability of the negligence of the host driver to a guest was not an issue ip this case. It was not made by any pleading or evidence. Defendants made no contention of imputability; rather they contended that the sole proximate cause of plaintiff’s injuries was the negligence of the host driver. On that issue the court gave a full and fair
In special ground 5 error is assigned upon the failure of the court, without request, to charge that the negligence, if any, of the host driver was not imputable to the guest, in connection with a charge that in order to find a verdict against the defendants they must find that they were negligent in some respect charged in the petition and that their negligence was the proximate cause or concurred in being the proximate cause of plaintiff’s injuries. “It has been repeatedly held by both this court and by the Supreme Court that an instruction correct in and of itself is not rendered erroneous by the mere failure of the trial court to give in connection therewith also another pertinent and legal instruction.” Burton & Class v. Connell, 84 Ga. App. 106, 109 (2) (65 SE2d 620). Thus, even if the pleadings or the evidence had sufficiently raised the issue of imputability to render a charge on that principle pertinent, no error is shown by this assignment.
Headnote 4 needs no elaboration.
One of the specifications of negligence charged against the defendants was a violation of the applicable speed limit of 35 miles per hour as fixed by a city ordinance. The only evidence in support of this charge was testimony of a witness who had approached the intersection on McDaniel Street and stopped his car to await a change of the traffic light. He testified that it was snowing but his windshield wipers were working and he saw the truck as it approached the intersection. When he got to the intersection the light was red. He did not observe the Plymouth in which the plaintiff was a passenger until the light turned green.
Thus the first estimate of the witness as to the truck’s speed of “about 35 or 40 miles an hour,” was qualified by the subsequent answer to “around about 35 miles an hour” which is within the permissible limit.
Moreover, his answer of “No, around about 35 miles an hour I imagine” carries the connotation that he really had no opinion as to the truck’s speed and that his estimate was at best a matter of speculation and conjecture. An “imagined” speed is pure surmise, upon which a verdict should not be based.
"The testimony that a line might be 'imagined’ to be projected back to the center line was mere speculation, hence not sufficient to show that the truck had actually been across the line.” Bartell v. Del Cook Lbr. Co., 108 Ga. App. 592, 601 (133 SE2d 903). “[I]f it appears from [the witness’] own testimony that [he] is merely surmising ... it should be excluded . . .” English v. Georgia Power Co., 66 Ga. App. 363, 368 (17 SE2d 891). And see Sanders v. Chandler, 71 Ga. App. 337, 338 (1) (30 SE2d 813). “Findings of fact based on mere conjecture can not be upheld.” U. S. Fidelity &c. Co. v. Brown, 68 Ga. App. 706 (3) (23 SE2d 443). “[M]ere conjecture does not constitute evidence upon which . . . findings may be based.” Globe Indem. Co. v. Brooks, 84 Ga. App. 687, 688 (67 SE2d 176). “[W]here
It is urged in special ground 8 that the failure of the court to submit the issue of whether there had been negligence on the part of defendants by reason of a violation of the speed ordinance, as contended in that specification of negligence in the amended petition, amounted to an expression of opinion on the part of the court. We do not agree. Certainly the judge did not instruct the jury that there was no negligence on the defendant’s part in this respect, as was done in Graham v. Malone, 105 Ga. App. 863 (126 SE2d 272), but on the contrary simply stated that he was not submitting subparagraph F of paragraph 10 of the petition. He made no comment as to what had or had not been proven by the evidence, though he might have said to the jury that there was no evidence to support that specification of negligence, for it was true. East Tenn. &c. Co. v. Markens, 88 Ga. 60, 61 (13 SE 855, 14 LRA 281); Shields v. Georgia R. &c. Co., 1 Ga. App. 172, 173 (57 SE 980).
Judgment affirmed.
