Opinion
41755.
ARGUED JANUARY 11, 1966.
DECIDED FEBRUARY 8, 1966. REHEARING DENIED MARCH 29, 1966.
Action for damages. Fulton Superior Court. Before Judge Tanksley.
Powell, Goldstein, Frazer Murphy, C. B. Rogers, W. L. Spearman, for appellant.
George B. Hooks, William I. Aynes, for appellee.
This was a suit to recover damages for personal injuries sustained by the plaintiff when he was struck by an automobile operated by the defendant Eddy as he was allegedly walking across Boulevard in an unmarked crosswalk at the intersection of Gartrell Street and Boulevard in Atlanta. A mistrial was declared upon the jury being unable to reach a verdict and the defendant filed a motion for a judgment in his favor notwithstanding the mistrial in accordance with his previous motion for a directed verdict. This motion was denied and the appeal is from that judgment. Held:
From the evidence on the trial of this case, a finding was authorized that the plaintiff pedestrian was negligent in attempting to cross Boulevard at the intersection of Gartrell Street in the presence of the defendant's oncoming vehicle and that the defendant motorist was negligent in failing to observe and take precautions to avoid striking the plaintiff. Under such circumstances, "it was a question for the jury to determine whose negligence was responsible for the injury. . ." Eubanks v. Mullis, 51 Ga. App. 728 ( 181 S.E. 604); O'Dowd v. Newnham, 13 Ga. App. 220 ( 80 S.E. 36); Claxton v. Hooks, 68 Ga. App. 383 ( 23 S.E.2d 101); Jackson v. Crimer, 69 Ga. App. 18 ( 24 S.E.2d 603); DeGolian v. Faulkner, 74 Ga. App. 866 ( 41 S.E.2d 661); Garmon v. Cassell, 78 Ga. App. 730 ( 52 S.E.2d 631); Blanton v. Doughty, 107 Ga. App. 91, 95 ( 129 S.E.2d 376).
The trial court did not err in denying the defendant's motion for a judgment notwithstanding the mistrial.
Judgment affirmed. Bell, P. J., concurs. Eberhardt, J., concurs in the judgment only.