Stokes v. Cantrell , 238 Ga. App. 741 ( 1999 )

McMurray, Presiding Judge,

dissenting.

I respectfully dissent as I do not believe this case marks one of those extraordinary circumstances in which the jury’s accountability as factfinder should be displaced by judicial findings and conclusions as to the disputed questions of diligence, negligence, contributory negligence and proximate cause. Georgia has long recognized that,

“ ‘[qjuestions of negligence, diligence, contributory negligence, and proximate cause are peculiarly matters for the jury, and a court should not take the place of the jury in solving them, except in plain and indisputable cases.’” Atlanta Coca-Cola Bottling Co. v. Jones, 236 Ga. 448 (224 SE2d 25). Added to that list are related issues of assumption of risk, lack of ordinary care for one’s safety, lack of ordinary care in failing to foresee a condition which could cause injury (Cowart v. Five Star Mobile Homes, 161 Ga. App. 278, 279 (291 SE2d 13)), and even where there is no dispute as to the facts, it is usually for the jury to say whether the conduct in question met the standard of the reasonable man. James v. Sears, Roebuck & Co., 140 Ga. App. 859 (232 SE2d 274). “ ‘Unless no other conclusion is permissible, questions of negligence are matters for jury resolution and are not ordinarily susceptible to summary adjudication.’ ” Epps Air Svc. v. DeKalb County, 147 Ga. App. 195, 196 (248 SE2d 300).

Cunningham v. Nat. Svc. Indus., 174 Ga. App. 832, 836 (331 SE2d 899). In the case sub judice, Cantrell admitted that he knew the collision site was a dangerous intersection; that his truck’s velocity was approaching the maximum 55-mph speed limit just before the collision, and that he did not see Montgomery look out for vehicles approaching from his northerly direction before he drove through the intersection. I believe this evidence, proof that Cantrell did not reduce his truck’s speed before traversing this hazardous area, and evidence that Cantrell’s radio was blasting at the time of the collision, would authorize a jury’s finding that Cantrell’s negligence was a proximate cause of the collision. It is therefore my view that the trial court erred in granting Cantrell’s motion for directed verdict.

Decided June 29, 1999. Talley & Darden, Jeffrey B. Talley, George A. Pennebaker, for appellant. Magruder & Sumner, J. Clinton Sumner, Jr., John A. Owens, for appellee.

On a motion for directed verdict, the trial judge may not weigh the evidence or decide any issue of fact, but in order to direct a verdict must find that there is no evidence at all supporting the opposing party’s position. Parsons, Brinckerhoff &c. v. Johnson, 161 Ga. App. 634 (288 SE2d 320) (1982); Barber v. Atlas Concrete Pools, 155 Ga. App. 118 (270 SE2d 471) (1980). Only where reasonable persons may not differ as to the inferences that are to be drawn from the evidence is it proper for the trial judge to withhold the case from the jury. Brown v. Truluck, 239 Ga. 105 (236 SE2d 60) (1977); Plough Broadcasting Co. v. Dobbs, 163 Ga. App. 264 (293 SE2d 526) (1982). This is truly a fortiori when there are present in the case questions of negligence, diligence, contributory negligence, and proximate cause, all of which are peculiarly matters for the jury. Cowart v. Five Star Mobile Homes, 161 Ga. App. 278[, supra]; Eyster v. Borg-Warner Corp., 131 Ga. App. 702 (206 SE2d 668) (1974).

Mansour v. McWilliams, 172 Ga. App. 377, 378 (1) (323 SE2d 262).