*1 judg- judgment this effect made within time allowed, original opinion ment reversed in accordance with the stands herein. Drury
35639. v. The State. by J. decision down heretofore handed this court is va- Townsend, judgment overruling cated and the trial court motion for conformity Supreme new trial is reversed the decision (211 513). 888, Court Ga. 89 S. E. 2d Judgment J., Gardner, Carlisle, J., reversed. P. concur. 8, 1955. Decided November B. plaintiff G. for error. Cowart, J. Jr., Spell, Thomas E. contra. Lissner, Solicitor, J.
35795. Reville v. Sullivan. J. brought Mrs. Martha Sullivan against an action Reville Nichols, J. S. to recover the value of plaintiff’s her deceased husband’s life. The hus- injuries band died as the result of riding received when by motor vehicle driven the defendant when it collided awith pick-up night truck on the 26, of June 1953. On the trial the case the jury plaintiff. returned a verdict for the The defendant filed a motion general grounds only for new trial on the by which was denied the trial judgment excepts. court. It is to this that the defendant Held: general considering grounds When of a motion for trial new this court light must construe the evidence in which most favorable to the by jury. Hutchinson, verdict App. returned Martin v. 26 Ga. (105 313). here, Accordingly, S. E. where as there was some evidence support jury, judgment denying verdict the trial court triаl, general grounds only, motion for new based on the must be affirmed. Judgment Townsend, Carlisle, Quillian, JJ., Felton, concur. affirmed. J., Gardner, J.,P. C. dissent. Rehearing 24, 1955 1955. Decided denied November October n Knox n & Norman, Earle Neal, plaintiff for in error. Evans, Jr.,
Randall contra. dissenting. P. The first count J., J., C. Gardner, Felton, petition night 26, 1953, 6. Harriss alleged: On the June riding owned and driven E. Sullivan was in an automobile Augusta U. at a west of defendant on S. #78 *2 westerly Harlem, Georgia. in and headed a direction Rocky Creek bridge over approached 7. As said automobile running 70 miles highway, was on said said bridge Rocky Creek has concrete abut- per hour. 8. The over bridge is as sides; said wide ments on the north and south for paved barely room highway, and two as the there is (a pick-up 9. Another pass to meet and on same. automobile cars truck) opposite direction and headed approaching from the was lights, and defendant failed to dim Augusta, east towards his approaching partially blinding driver of said truck. thus highway of 10. Defendant drove his car towards center par- truck, speed, at the aforesaid and the driver of the while tially blinded, attempted colliding with defendant’s to avoid and effort, to his struck automobile, and in that drovе causing truck of his to careen the south abutment bridge of 11. When defendant back while out control. onto the his car and the two the truck he lost control of approaching, saw highway. 12. As center of the and in the vehicles met collided injured seriously collision, E. was Harriss Sullivan a result of University where Hospital Augusta, was carried and injuries. a 13. The later as result of said died hours several E. death and of Harriss Sullivan’s proximate cause of the collision specific negligence part gross defendant, (a) driving wit: In said negligence follows, acts of Georgia, in violation of statutes autоmobile (b) per se; In per negligence hour, which is faster than 55 miles speed greater than was operating automobile at rate said for the traffic and situ- safe, having regard due and reasonable allow (c) dimming lights so as to In existing; then ation opportunity see the approaching operator position of the defendant’s car abutments (d) driving said automobile to the center In highway; in the truck; (e) In not oncoming highway where struck stopping shoulder and extreme stopping pulling his car a-collision, after see- avoid reaching order before out of control. approaching while ing the truck allegations one count contained the same as count The second (e). (d) paragraphs 6, 11, (a), and 13 The cor- except (6) alleged: night responding paragraphs new in count On the two E. 26, 1953, Sullivan, at the instance of Harriss defendant of June S. Augusta and Harlem on U. drove him to started Augusta, and he headed west of #78 auto- westerly Georgia. 7. As Harlem, direction towards said highway, Rocky Creek on said approached mobile over running per than 50 hour and at a same was more having regard for the greater than due safe, was reasonable existing. 11. trаffic, and all traffic conditions there highway, the physically unable to As the truck defendant approached, control, truck, out of operate car, and control while highway, careened to its left-hand side of center riding, E. Sullivan was while automobile which Harriss the said go slackening forward without its control, continued to out of near the center speed, and met collided the two vehicles *3 of highway, slightly and to Julian Reville’s the (a). driving automobile at the center the 13 In said of safe under the speed greater than was reasonable and all cir- highway at cumstances, rеspect of and with to the condition the the point, including approach bridge, to narrow and the that in of miles existing conditions, 50 traffic which was excess (d). continuing automobile to- per hour. 13 In to drive said oncoming the truck with- bridge said narrow and wards towards out of slackening control, and while same, of (e). 13 In physically operate and same. while unable control driving right- extreme slackening speed and same reaching colliding stopping before hand shoulder same on-coming truck. with said Reville, defendant, purpose
Julian S. called for the cross- night early examination, morning testified: “On of June 26, 1953,1 was in an automobile I owned and drove on U. S. coming from in Augusta, Georgia, direction #78 Harlem, Georgia. having I familiar with was that highway, approached Rocky Bridge it before. I Creek traveled place beyond me, Harlem. The road at ahead of straight. say my side, straight beyond I would it was on was bridge couple yards. approached bridge for a of hundred night. It dark. during the
at that hours burning. As I bright lights were came say my couldn’t whether lights highway, reaching bridge, I did have down before my lights approached I dimmed as I on. I not remember if do lights oncoming vehicle bridge. of an I did observe got about thе meeting me. whether that vehicle as As to lights, Bridge changed the direction of its Rocky Creek they straight come came they straight, continued to or whether guess I was about they came until on lights of Bridge when I yards Rocky from Creek first saw right-hand side my on I was then approaching automobile. hour, 55 miles an about 50 to highway, the center of the sign being a ‘slow’ night time. As to familiar with then get Augusta highway you as come that controls the I am not familiar with they sign but point, near a mile or mile along there for restricted zone whether there is a There I am familiar with. just a is all half, and a school zone change in I did nоtice sign there. said ‘slow’ about the oncoming until lights vehicle direction of the time it reached bridge, and at the time it reached this bridge, when from the 150 to 200 feet I would swayed right-hand side and then its oncoming vehicle went to like first looked he of me. It left front back across to the abutment to the right. There is an swerved hit the swayed I could tell he each side. away from the he As how far was the left.
then went back to right, sway back towards the began to bridge when he my come bridge he he left the continued highway, and continued to come direction, my side of get straight He never did his car car. directiоn *4 straight ahead, to run but tried to I did not continue again. stop. my right and to As far as I could on tried soon get over as applying coming my path stop, I tried he was across to as I saw go after the wreck to my I did not have occasion brakes. my applied was. I would I what that distance and measure he hit the was about or 20 feet. When 12, brakes for 15 off he was away me, but when he came running an hour. say I 50 to 55 miles me. I much closer to my right. me I car to the coming towards cut I him When saw
27 get my I car completely paved road, only partly did not off the off. I lack being didn’t three feet my car laсked shoulder, being three feet to center line. As the highway, being there I highway, 24-foot don’t know how:wide is. I didn’t have my right- about three feet between hand paved part wheels the extension of the of the road. There was not a shoulder that was cut smooth for about six feet of me—not being that wide. As there room get me it, for I didn’t have time. There was plenty of room there to do but I that, didn’t have time. As whether when I came near signs to where those slow or signs were zone did my I began slow car down wait until he me down, they sign they have a put during slow there school hours, night they but this was didn’t have it there. As to there, there a side road there an intersection, a cross road. I didn’t slow down for road. collided with this eight beyond vehicle about and if it had not been for the car headed me I had no idea slowing as I down approached Until that vehicle started towards me My didn’t slow down all. car was under control. If was under stop control I could within feet. I could any ianmediately. turn it to the make it follow directioaa I was familiar with road, having many traveled times. signs was faaniliar slow and the road that came Wyld’s go way across, road that didn’t all the also the baidge. baidge highway than little aaarrower itself.”
R. W. plaintiff: Tomlin testified “I am for the W. Toon- R. lin, Jr., deputy sheriff, am Richanond County, Geoa’gia. I subpoenaed have been this plaintiff case both the and de- fendant. investigation añade an of the collision between Mr. Reville’s car and the Holliman truck 26, on June Friday morning at 2:37 a. an. Mr. Lamar Duke, deputy another sheriff, was with me at the and he tiane and I investigated the collision. I had making investigations of wrecks and col- years prior lisions for this, and had had that much experience while in departanent the sheriff’s Augusta and the Po- Depaaianent. lice enough expea'ience have had in matters of opinion kind to form an speed, conditions skid by car’s,etc., physical aaaarksañade from evidence. The road *5 straight beyond this point collision was particular of this at the bridge, too. Augusta the Rocky Bridge the side of Creek and on Holliman my investigation I the From could tell end abutment at the east bridge, striking a 12-inch struck the The Holli- right-hand Rocky Bridge, Creek side. the right-hand side Augusta on its man headed truck was it indicated Holliman car that marks on the the found leaving the immediately in bridge, had hit the and almost pick-up they finally stopped, marks until there were skid making these vеhicle Holliman was the truck driven traveling towards Holliman truck was Apparently marks. two thirds easterly direction, and about Augusta, in about bridge, gone beyond the end of pick-up truck had contact, and is what made rear fender the front of bridge and abutment rear wheel hit the the truck apparently when went what made contact two' where the end and went down threw the back into way skid mark all the There a constant vehicles collided. the abutment of where I first saw them off place approxi- impact car. The took impact with this left-hand mately 180 from the about pick-up truсk. reference to the line. I side of center still indi- tire marks and the east, pick-up truck was its line went over the center made a cated it semi-circle bound automobile with the west left and made contact what I determined car from Mr. Reville’s Thomson. original I believe the the road. was on side of its extension a three-foot wide, with was 18 feet paved road there then, there making 24 feet wide side, side, or each either line, center from the being 12 feet edge pavement line, center 3 feet from about Mr. Reville’s vehicle was There 3 feet from center. right-hand wheels right-hand side, nine- Mr. Reville’s about a shoulder on adjacent shoulder, level It was a dirt foot shoulder. people’s was a kind of decline some edge into of this shoulder there. I believe there was room there to yard that lived gotten com- where it could have accommodate an automobile observing any skid pletely pavement. As to marks mark automobile, only skid Mr. Reville’s reference to 12-foot investigation was the time of we observed applied apparently straight mark where brakes tire Mr. Re- relate to impact, and skid marks point of those at the straight. Thеy off 12 left car, and were feet back of ville’s *6 from impact. anything As that there point car from the all, physical his at there indicate he turned to was no to anything got I did see when I to indicate. not evidence investigation turning indicate make the his further there to pavement had 2 where he feet on and nine feet on Wylds Road, I am familiar with a dirt the shoulder. which is Highway 78 It U. S. about 6 feet center from road. came into bridge. the east dead-ends into the That end of the It right. Mr. This accident the best happened, would be to Reville’s eight determine, approximately could feet west of Road we bump impact where the from intersection with already passed Wylds place. Mr. Reville had Road about took impact place. my investigation from 8 feet before took As speed I determine the I would vehicles, if was able to just approximate speed. my opinion As whether or not in an per expert witness, speed an 50 to 55 miles hour at that as particular place existing there, the conditions a safe under speed an before I make a maxi- speed, or unsafe statement as to speed, make it known that I am mum safe I would like to investigating traffic expert. doing simply traffic I am What knowledge all expert complete has accidents, but traffic Gentlemen, my opinion I a maxi- speeds, which do not have. per recorded at 40 miles hour that mum safe there was 12 feet of skid marks particular location. With reference those available, have a chart car, behind Mr. Reville’s but that were memory, from As thoroughly it, I familiar with sir. am not opinion whether or not I can now or whether I can form an point from 12 feet of skid marks at what could tell these that brakes, would rather not answer Mr. I applied Reville 12 feet of skid mаrks about it. Those be definite could not 12 brakes for least feet.” applied at would indicate that he blackboard and a pointer, With the use of a Mr. Tomlin testi- fied on “If this truck had cross-examination: remained on its highway I don’t right hand of the believe there would have side pass point im- any for either vehicle to at the trouble assuming pact. I believe The road was feet wide there. driving even that Mr. Reville was 100 miles an hour he could safely passed point pro- of the accident, at that vided road. As stayed the truck had its own impact if found the have occurred the truck was highwаy, about three feet over on Reville’s side of the say yes physical drippings would from evidence of the from both automobiles. After the truck hit the end of the traveled feet before it came contact jury opinion giving Mr. Reville’s car. As to speed, would estimate truck was time would first struck the evidence saw do, be hard it first sort of to estimate past experience From it could have been struck the physi- going it, at 40 an hour control of and had a and lost disability go cal at that would have let it out of control *7 speed willing give distance. would not be estimate way impact, thе truck had at the time of because we no determining either vehicle. We had not physical give car evidence of each time of my opinion way the truck hit the accident. As to from the down, it I believe in speeded up would that it or slowed have it would have more the manner that the truck struck Wylds tendency speed up just out of control. or less it trifle right-hand Mr. side Road would have been to Reville’s while had been com- traveling your if a car question, west. As to ing up Wylds traveling along Road at the time Reville was there, lights on, probably lights and had would have been bright, coming how could Mr. Reville have far seen Wylds road, Road reached the I don’t believe he would before he traveling Wylds been able have the car south on have seen Wylds approached Highway Road. Road as it 78 is a semi-circle words, In from behind a type 'S’ road. other comes house and then in, circles around a service station comes the last only straight would be the from service station stretch stretch filling in from station. There is there. It comes around Wylds stop sign Road as comes into there #78. Wylds Road into If there had been car #78 lights though from the obstruction even have some could Rocky Wylds to the end of any. Road didn’t see Mr. Reville bridge is 18 feet. width of that Bridge 206 feet. The is Creek pick-up and a bridge for a car on the plenty of room There is in a use a blackboard occasions to pass. truck jury and indi- before the will jury. before a stand courtroom happened blackboard where the accident at. Now cate on the diagram will undertake to make deductions from we Department have drawn for our record with the Sheriff’s official course, you .County. Richmond Of understand this is not have. meas- scale, drawn distances we It inches tape and that is ured measure at scene the accident will diagram. Now we way record our measurements we represent Milledgeville-Road, U. S. let outer lines the two entering highway. Now, line line of the broken center corner here Wylds particular and on this Road, here would be made reference to statement service station is the out and Wylds Road comes circles just Road. now about straightens and then out as way back around this and comes bridge end here we will use these markers goes north. So along edge highway. Now, this is the outer walkway bannister around bridge here is a cement steel the sоuth or area feet from protect it, area at this and out 5% for pedes- made on there of this an addition the narrowness of it along walk on account of trians to Now, this is a the extension of the reference to 5%-foot side for the guard a steel walkway here, with Rocky Creek falling down into pedestrians from not protection of accident we determined investigation of this In our there. pick-up Now, in this direction. will *8 the truck, got beyond bridge two-thirds of this the it the about right When the rear fender. way, represent and we will let this it point right here, impact right fender here hit this with this would throw it to less, mоre or which threw this end out right Apparently here. causing go vehicle right just bit, this a it to left, which would have caused jerked driver it point point to this From this here make circle to this. a similar he here, over Now, Reville’s was here 180 feet. Mr. in off it is over manner, as the stuff traveling west in was this be point this would here, area and about at this here, this area the west end of the Road here. from here, here, point it here, From four feet out from to this about feet straight was skid which was three inside mark, 12-foot right. Mr. right. center Reville’s Reville’s line to traveling right-hand He which throw on his west, would straight side. The marks would feet in here tо this skid be point vehicle, point pick-up and at which the this here is the in direction, bearing center in that truck came across the line point represents skid, mind more or less a that this a tire contin- place. Now, uous tire skid that leads from the this point impact place approximately point took this here, at this completely hitting car, truck the front and it end, this went edge right, road, just feet, resting the shoulder of impact pavement. pick-up truck after the This place here, bouncing motion and it bounced backwards into this headed was about 15 feet in semi-circle of trаffic that Harlem, back out the same lane he was down towards originally. Originally going he was Augusta, and 15-foot circle bounced that would make a here, car traveled 36 feet down west out this impact say, point of the road. As I where this took shoulder place approximately 8 here the end of the it was feet in from diagram be Wylds Road area in would about the here. That add, complete might distance, recorded. That bridge, is 206 feet. center of this road here to end of up diagram we have on accident re- this winds official place that is in there port. Now, truck and this is the was. and the truck at where truck struck the I referred road. this on its extreme arc. skid in this After arc, a semi-circle or marks dis- bounced out short truck hit the abutment of got down and and after the wheel settled here, tance to this pressure on been the car, it could have the momentum All were that after that caused it. the indications these tires completely truck he of control struck with his When the struck automobile truck, apparently. of his ex- from its driving the truck had crossed Reville was that Mr. got line and the road the center right-hand side of treme words, In other Mr. Reville. traffic of in the lane of three *9 right-hand Mr. Reville two from edge his own paved road, beyond and the truck was three feet the center line of impact The car traveled after and the stopped may explain truck If I about 15 feet here. further jury may strange jury seem a little as to the position truck, you of this but follow if will line of the arc in, stop, truck was and there a sudden the impact, end right swing- the back of this truck would been in a have ing motion, consequently after point impact sud- den if stop, there been a around, would have bounce ricochet you understand what mean. As how much shoulder there right, was on thе it was the same distance both highway shoulders. In other words, both had about sides a nine-foot ample shoulder. room for the There vehicles passed they they have bridge, if had met on the but met 180 feet took impact place, where which is beyond the bridge.”
On re-direct Mr. Tomlin examination diagram testified: “The original here diagram. have is the I cannot state about the distance from the point abutment of to the where the truck made right-hand its most veer extreme point turn this because, before, as stated we didn’t draw scale, nor can give you it to recollection, approximately, because that happened years ago. say two I believe I could that when the truck hit the abutment immediately started going as if according right, its tracks, to the and then it looked jerked as if he back to the your question, left. As to with things those in mind if he went immediately suddenly jerked then left, say to the would I the distance feet, my was 20 to 30 that, recollection of in answering ques- tion I would that his would have lot bearing particular answer. A people lot of do quickly not react as others, and say, instance, as for might this man going have been hour abutment, when he this hit the distance between this and thе might jerked automobile it back greater left could have been than person another who was going 45 to 50 miles an hour. state that absolutely as an illus- tration. As to whether on the side of the road where filling Wylds have the station and Road where Reville enough for two wide say this road was along there, I would came response your question In get Road. in, cars to assuming that Wylds Road, approached that Mr. Reville *10 Road approaching him, the already he had seen the might been though Holliman escape place, an even that according that escape route, I will answer an negligent, was that filling where corner there that speed. pretty That a close beyond the over being open spaces As to station sits. some the road say he could have missed road, I would shoulder, abut- the 180 gone the It was feet on shoulder. only car showed impact. Mr. Reville’s ment the of did have his brakes. We applied where he marks of skid We over with. accident was talk Mr. Reville after this with some after great him, but time any conversation didn’t have As University Hospital. accident we Mr. Reville at saw opinion form an your opportunity an question did we have oрerate physically able to control as to whether he was say physical abili- collision, I will automobile at the time of the stage shock, but ties, going through a of no, apparently he was something to man had determine that we were able to where extent drink, it was not to possibly whisky, beer or but operate automobile ability to we could tell whether his against impaired. We did make a case him. We ascertain did injured wreck, that in and as Mr. Sullivan se- riously he extent question was to such that we injured, couldn’t him. I him, working as the doctors were know did later injuries. speed signs die from As to what the аs to the in area, during daylight hours, as there is school sign speed zone of 25 miles vicinity, hour, there was warning signs coming right, road there are in from the from the and the also one left west of and into speed normal believe reverts after school hours morning speed early hours, and maximum at that they arc signs day, 55 miles an The were there that hour. believe school zone permanently fixed. I of 25 starting Bayvale mile, a half-mile east an hour for about of were for a school. There are School, half-mile west City signs Augusta, 78 from the where U. S. city area from the hour, at miles an entire area is zoned in this going west, 3.6 There are other schools limits miles. also particular area and the you area speaking of, are between this believe, city city 3.6 carries limits, limits. The miles from the just beyond Bayvale beyond of the hill School, up top to the there.” think plaintiff prove
We failed defendant was guilty gross negligence any under specifications alleged petition in the specification driving additional under the influence of an having intoxicant treated as been added in the objection amendment absence of plea defendant’s guilty charge. testimony unimpeached defendant’s main and there are no circumstances inconsistent with which would have jury authorized a it. If disbelieve it had disbelieved important particulars, the circumstantial evidence did not au- *11 a finding gross negligence. thorize of The was shaken defendant up injured in the collision seem and would that his failure to remember whether lights he dimmed his should not condemn him when easily he could impunity have testified he did dim them when he knew that he did remember. The not plaintiff’s evidence fails sustain specification negligence to of lights failure of the defendant to dim his blinded the colliding driver of attempt thе truck and caused him to to avoid with the defendant’s automobile and caused the driver of the truck to drive to his of and strike south abutment bridge causing his truck to careen back onto the while out of control. The collision between the car and truck took place 180 bridge. feet from the If both vehicles were per hour, at 50 or 55 they would have been apart when driver hit the abutment any they Under view were considerably more than 180 apart. To arrive at conclusion that the failure of the to dim lights defendant his caused the collision with the a distance of 300 feet requires purе to 360 conjecture. resort to explanations readily Several suggest themselves just which are reasonable as the failure dim lights, to if not more reasonable. allegation There is no by the plaintiff, contention, or a that the truck driver blinded after was he hit the or that so anything blinded had do with the to collision. The defendant’s gross negli- circumstances, could not be
speed alone, under the traffic. The defendant of other gence. There no evidence The evidence shows his side of the all times on incapacitated intoxi- all, slightly, if that the defendant high degree require It sрite plea guilty. cants, in would that the condition speculation to conclude conjecture collision or proximate was the cause the defendant dispute the defendant’s evidence to gross negligence. There is no and did avoid the collision put on his brakes to statement that he fair of his construction pull off the road. not have he pull off the road after did time to testimony that he not have if Even the defendant going a collision. thought he was into delay trying stop realizing and his his situation was slow think bring ourselves collision, we cannot contributed gross negligence guilty of сould be found the defendant did not contribute. emergency which he getting out of the same identical had been “cold” sober If the defendant have been found occurred, do would we not think collision that, then If are correct grossly negligent. to have been of intoxi- degree having under the influence some small gross produce magic power not have had the cants could had had the If defendant had been sober negligence. to fail to him was that caused whatever collision, identical which it slight intoxication equivalent avoid it would be of the runa- way prevented getting оut him from claimed gross negligence have been way truck. In neither case could three feet defendant was this case when the under facts of right wheels with his 24 foot road of the center of the *12 shoulder. than two feet more a criminal The violation of law and of itself is necessarily gross negligence. Additional are necessary circumstances “driving true even as to a that is violation under influ- ipsa Neither ence” statute. does the rule res loquitur apply gross this, especially negligence. such a case as to no evidence to There is likewise show that the defendant owed duty ordinary the deceased the to exercise care for safety.