Callaway v. Nicholas , 72 Ga. App. 284 ( 1945 )

1. "``If there be any evidence upon which a verdict could be rendered, the case should not be withholden from the jury.' Tison v. Yawn, 15 Ga. 491, 493 [60 Am. D. 708]. The rule as laid down in innumerable Georgia decisions is that ``If there is sufficient evidence to authorize the jury to find for the plaintiff, although it may not be sufficient to require them to do so, a nonsuit will not be granted.' 4 Mich. Dig. Ga. R. 553, and cit. It is also the general rule that a nonsuit will not be granted unless all the facts proved and reasonable deductions therefrom do not entitle the plaintiff to recover. Although there may be no conflict in the evidence, the matter should be left to the jury where reasonable men might differ as to the inferences to be drawn from certain evidence." Elrod v. McConnell, 170 Ga. 892 (154 S.E. 449).

2. Under the above rulings the evidence made a case for submission to the jury, and the court committed error in awarding a nonsuit.

DECIDED MARCH 30, 1945. A. H. Nicholas filed a suit for damages against W. W. Callaway for injuries sustained by him in a collision of his automobile, driven by him, with a truck belonging to Callaway, driven by Thomas Wells. Callaway filed a cross-action for the damages to his truck. After all the evidence was in and both sides had closed, the judge directed a verdict against Nicholas, and granted a nonsuit as against Callaway. This court held that the judge did not err in directing a verdict against Nicholas (Nicholas v. Callaway, 72 Ga. App. 41, 32 S.E.2d 836), holding that the journey upon which Wells, the servant of Callaway, started was entirely for his own purposes and without the knowledge and consent of Callaway; that the collision occurred during the interval of this trip; and that Callaway was not liable for the acts of Wells. The instant case is the cross-action by Callaway against Nicholas to recover for damages to his truck as a result of the collision. Wells testified that he was driving Callaway's truck south on McCamy Street; that the truck was "missing and skipping because the valves had previously gotten hot and were injured;" that he had good hydraulic brakes; that he approached the intersection of McCamy and Emory Streets, in the city of Dalton, Georgia, at a speed of 20 to 25 miles per hour; that on the right-hand side of this intersection, that is, in the northwest corner thereof, there was a store building, which was "flush with the sidewalk," and cut off his view to his right, or to the west; that Nicholas was traveling east in an automobile on Emory Street; that Emory Street was 18 to 20 feet wide; that both streets were paved; that as he approached the intersection he reduced his speed to 15 miles per hour; that he had to be up pretty close to the intersection before he could see to his right on account of the store building; that at the point where he could see to his right, he saw Nicholas's automobile; that when he saw it it was 150 feet from the intersection and approaching the intersection from the west at a speed of from 50 to 60 miles per hour; that at that time he could have stopped his truck in three feet. "As to whether I [Wells] could tell that he [Nicholas] wasn't going to stop, or couldn't stop on account of the speed he was going up through there, I allowed that maybe he would stop — I thought he could stop. . . He was 150 feet away from the intersection I expect. He was coming 55 or 60 [miles per hour]. Yes, sir, he was coming pretty fast. I just entered the intersection when I first saw him — just cleared the store building there. When he ran into the back of the truck, I was almost across the [intersection]; he hit the back end of the truck. I could stop my truck in about 3 feet." Nicholas, the defendant in the cross-action testified: "As I approached McCamy Street I slowed down to about 5 or 6 miles an hour, looked both ways, north and south, and the road looked clear, and I started to cross the street; when I was about halfway, the truck ran into me. The right side of the truck struck the left side of my car. This truck appeared to me to be running about 50 miles an hour. The truck ran over 30 yards after striking me. The driver didn't turn either way, just kept going straight." On cross-examination: "When I got to the corner I slowed down to about 5 or 6 miles an hour. I was probably about 10 or 15 feet from the corner when I put on my brakes. I was going upgrade just a little. I didn't skid at all. I applied my brakes when I saw the truck coming, and there was a mark of 2 to 3 feet. The right back corner of this truck smashed into the front end of my automobile." The question now presented is, did the court err in nonsuiting Callaway? "The general rule announced by the Supreme Court is, that a motion for a nonsuit should not be granted where there is any evidence tending to sustain the plaintiff's action, or where the jury can fairly infer from the evidence a state of facts favorable to the plaintiff." Moseley v. Patterson, 27 Ga. App. 133, 135 (107 S.E. 623).

This court held in Nicholas v. Callaway, supra, that the journey upon which Wells had started was only for his own purposes and without the knowledge or consent of Callaway, his master; that the master was not liable for the negligence of the servant during the interval of this trip during which the collision occurred. Hence, the negligence, if any, of the driver of Callaway's truck could not be imputed to Callaway. No evidence of the negligence of Callaway appears in this case, nor is there any negligence that can be imputed to him.

"A jury in arriving at a conclusion upon disputed issues of fact may believe a part of the testimony of a witness or witnesses, and reject another part thereof, it being their duty to ascertain the truth of the case from the opinion they entertain of all the evidence submitted for their consideration."Reaves v. Columbus Electric c. Co., 32 Ga. App. 140, 151 (122 S.E. 824). Applying this rule to the evidence in the instant case, the jury were authorized to believe all of the testimony of Wells in preference to the testimony of Nicholas, or, if they saw fit, to believe only a part of the testimony of each. Under one phase of the testimony, the jury were authorized, but not required, to find that Nicholas's car approached the intersection at an unlawful rate of speed — "50 to 60 miles per hour;" that the truck was almost across the intersection when the front of Nicholas's car struck the back end of the truck; that the truck had entered the intersection first and was traveling much slower than the Nicholas car — in short, that the truck had pre-empted the intersection, and had the prior right to proceed across; that it was negligence for Nicholas to run into the truck; and therefore that Callaway might recover. On the other hand, under other phases of the evidence, the jury would have been authorized to find that Nicholas was not negligent, and that Callaway could not recover. The evidence was sufficient for the submission of this case to the jury and it was error to grant a nonsuit.

Judgment reversed. Broyles, C. J., and Gardner, J., concur.

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