Opinion
36049.
DECIDED APRIL 5, 1956. REHEARING DENIED MAY 10, 1956 AND JUNE 12, 1956.
Tort; automobile collision. Before Judge Baldwin. Macon City Court. November 4, 1955.
H. T. O'Neal, Jr., George L. Jackson, for plaintiff in error.
Martin, Snow Grant, contra.
The trial court erred in denying the plaintiff's motion for new trial as amended.
DECIDED APRIL 5, 1956 — REHEARING DENIED MAY 10, 1956 AND JUNE 12, 1956.
Charles Tidwell brought an action against W. M. Lovejoy in which he sought to recover for damages to his automobile, for personal injuries, and for pain and suffering. On the trial of the case the undisputed evidence showed: that the collision took place on State Highway 247 approximately 150 feet from the point where this highway intersects with U.S. Highway 41 south of Macon, Georgia; that the point of the collision was on a hill or incline which sloped towards the said intersection; that the front wheels of the defendant's automobile were off the paved portion of the highway while the rear of such automobile was protruding onto the paved portion of the highway; that the plaintiff while proceeding down the hill towards the intersection of U.S. Highway 41 struck the left rear of the defendant's automobile and continued down the hill or incline out of control until after it reached the intersection of U.S. Highway 41 and overturned. It was also undisputed that the collision took place between 11:30 p. m. and midnight. The evidence was conflicting as to whether a truck was proceeding by the defendant's automobile traveling in the opposite direction from the plaintiff when the collision took place, the speed of the plaintiff's automobile, whether or not the defendant was backing his automobile onto the paved portion of the highway at the time the collision took place, and how far the defendant's automobile was protruding onto the paved portion of the highway when the collision occurred.
The jury returned a verdict for the defendant, which verdict was made the judgment of the trial court. The plaintiff filed a motion for new trial on the usual general grounds, which he later amended, and assigned error on excerpts of the charge of the court and on the admission of evidence over his objection. The trial court overruled the motion for new trial as amended and it is to this judgment that the plaintiff excepts.
The defendant in the lower court, the defendant in error in this court, filed a motion to dismiss the plaintiff's bill of exceptions on the ground that no bona fide attempt had been made to comply with Code § 70-305, as amended by the Act of 1953 (Ga. L. 1953, Nov.-Dec. Sess., pp. 440, 446; Code, Ann. Supp., § 70-305).
1. The defendant filed a motion to dismiss the plaintiff's bill of exceptions in which it was insisted that the plaintiff had failed to comply with Code § 70-305 as amended. The failure of the plaintiff to comply with the requirements of this Code section would not result in a dismissal of the bill of exceptions, but would only result in a refusal of this court to consider assignments of error requiring a reference to the brief of evidence. See Buice v. State, 92 Ga. App. 260 ( 88 S.E.2d 322).
In the present case it appears that there has been a bona fide attempt to comply with this requirement. The majority of the record, of which the defendant complains, consists of medical testimony concerning the plaintiff's alleged injuries, and where as here the plaintiff's injury was properly a question before the trial court it cannot be said that such testimony is irrelevant when the case is before this court for review. Therefore, the motion to dismiss must be overruled.
2. Special grounds 5 and 6 of the amended motion for new trial complain of the admission in evidence, over the plaintiff's objection, of testimony fixing the speed of the plaintiff's automobile at 85 to 95 miles per hour. Special ground five deals with the testimony of a witness Moneyham, while special ground six deals with the testimony of a witness Studer. The testimony of these witnesses was that they were traveling towards Macon at a speed of about 50 to 55 miles per hour when a Lincoln automobile, identified by them as the plaintiff's automobile, passed them at a speed of about 85 to 95 miles per hour, that ten or fifteen minutes later they arrived at the scene of the collision, that they neither saw nor heard the collision.
There was no evidence presented as to how far these witnesses were from the scene of the collision when the plaintiff passed them, how much time elapsed between the time the plaintiff's automobile passed them and the time the collision occurred, (only that they arrived at the scene of the collision 10 or 15 minutes later), nor was there any evidence as to the speed that these witnesses drove between the time the plaintiff's automobile passed them and the time they arrived at the scene.
Although it has been held in Georgia that the speed of an automobile one-half mile from the scene of a wreck is admissible ( Central of Ga. Ry. Co. v. Keating, 177 Ga. 345, 352, 170 S.E. 493), and that the speed of a train a short distance from a scene where a tort is alleged to have occurred is admissible ( Reed v. Southern Ry. Co., 37 Ga. App. 550 (5), 140 S.E. 921), the evidence admitted on the trial of this case as to the speed of the plaintiff's automobile at an undetermined time before the collision and at an undetermined distance from the collision was inadmissible, and the trial court erred in admitting such irrelevant and necessarily prejudicial evidence over the proper objection of the plaintiff.
3. The grounds of the amended motion for new trial complaining of excerpts of the court's charge have been carefully examined, and when considered in the light of the entire charge were not error for any reason assigned.
4. The general grounds of the motion for new trial are not considered, inasmuch as the case may be tried again and the evidence on another trial may not be the same.
5. The trial court erred in denying the plaintiff's motion for new trial as amended.
Judgment reversed. Felton, C. J., and Quillian, J., concur.