Opinion
32722.
DECIDED NOVEMBER 1, 1949.
Damages; from Fulton Superior Court — Judge Etheridge. July 18, 1949.
Edgar A. Neely Jr., Neely, Marshall Greene, for plaintiff in error.
G. S. Peck, contra.
1. It was not error for the court to overrule the defendant's motion for a new trial on the general grounds.
2. The verdict was not excessive.
DECIDED NOVEMBER 1, 1949.
J. Louis Sayre sued Marvin B. Crews for damages allegedly sustained by reason of a collision of the parties' cars. The petition alleged: that on October 25, 1946 at 9:30 p. m., the plaintiff was driving his 1937, 60 H. P. Ford automobile north on Juniper Street, N.E., in Atlanta at a lawful rate of speed and in the exercise of ordinary care; that as he approached Fifth Street a Packard sedan driven by the defendant suddenly and without warning sped east on Fifth Street directly into the path of the plaintiff's automobile; that at the time there was a stop sign on Fifth Street directing traffic on Fifth Street to stop before entering Juniper Street; that there was no stop sign on Juniper Street at that intersection; that the defendant did not bring his automobile to a stop before entering Juniper Street; that the plaintiff, when he saw the defendant's automobile in his path applied his brakes in an effort to avoid striking the defendant. The plaintiff pleaded a city ordinance on necessity of stopping before entering a through street and an ordinance establishing a stop sign on Fifth Street at Juniper Street. The defendant filed his answer and cross-action denying the material allegations of the petition and for further answer alleged that on the occasion referred to in the petition he was driving his 1939 Packard sedan in an easterly direction on Fifth Street; that it was foggy and visibility was poor and when he reached the intersection of Fifth and Juniper Streets he came to a full and complete stop, put his car in low gear and after looking in both directions he proceeded into the intersection; that when he was approximately two-thirds of the way across Juniper Street and while driving at a speed not greater than fifteen miles per hour, the plaintiff, who was traveling in a northerly direction on Juniper Street, ran his automobile into the right-hand side of the defendant's automobile; that the plaintiff was driving in a reckless and illegal manner and without having his automobile under immediate control. The defendant pleaded a city ordinance regulating the driving speed of automobiles on Atlanta city streets and an ordinance concerning the right of way of vehicles entering an intersection. The judge sitting without the intervention of a jury found for the plaintiff in the amount of $500 and the defendant moved for a new trial on the general grounds and on the special ground that the verdict was excessive. A new trial was refused and the defendant excepts.
1. The evidence on behalf of the plaintiff tended to show that the plaintiff was driving on Juniper Street at a speed of around seventeen miles per hour as he approached the intersection of Fifth and Juniper Streets; that he saw the lights of the defendant's car as it approached the intersection from Fifth Street on his left; that he knew there was a stop sign on Fifth Street at that point; that he assumed that the defendant would stop at the intersection; that he looked in the opposite direction to see if the way was clear; that the defendant did not stop for the intersection; that the plaintiff could not avoid striking the defendant's car after he saw it in the middle of the intersection; that the night was clear and not foggy. The evidence in behalf of the defendant tended to show that it was very foggy at the time of the collision; that the defendant stopped for said intersection in observance of the stop sign; that he looked to his right and left before proceeding into the intersection; that the way was clear when he started across the intersection; that he shifted the car into low gear after stopping and then into second and before shifting into high and when two-thirds the way across the intersection the plaintiff's car appeared out of the fog and hit the defendant's car amidship; that at the time of the collision the defendant was not traveling over fifteen miles per hour. The evidence of the defendant was in direct conflict with that of the plaintiff. The case is clearly one of fact for a jury or for the judge sitting as a trior of fact without the intervention of a jury. The testimony of the plaintiff was not so self-contradictory, vague or equivocal that it should as a matter of law be disregarded.
2. The defendant contends that the verdict of $500 for the plaintiff was excessive and that a new trial was demanded on this ground. S.E. Kirby, in behalf of the plaintiff, testified on direct examination that he was an automobile mechanic with ten years' experience; that during that time he had bought and sold cars; that he was familiar with the plaintiff's car; that before the collision the plaintiff's car had a market value of from $600 to $800; that immediately after the collision the market value of the plaintiff's car was $150 as junk at top price. On cross-examination Kirby testified that the market value of the plaintiff's car immediately before the collision was $600. This testimony was not rebutted.
The court was authorized from the evidence to find for the plaintiff the sum of $500.
The defendant-in-error's motion for damages for frivolous appeal is denied.
The court did not err in overruling the motion for a new trial.
Judgment affirmed. Sutton, C. J., and Worrill, J., concur.