Opinion
42196.
ARGUED SEPTEMBER 6, 1966.
DECIDED SEPTEMBER 23, 1966. REHEARING DENIED OCTOBER 14, 1966.
Action for damages. Savannah City Court. Before Judge Oliver.
Hitch, Miller, Beckmann Simpson, Luhr G. C. Beckmann, Jr., A. Martin Kent, for appellant.
Pierce, Ranitz Lee, Thomas J. Mahoney, Jr., for appellee.
The plaintiff having established a prima facie case of negligence; per se and proximate cause on the part of the defendant, the burden of proof was on the defendant to show that the act complained of was not done in violation of the applicable statute because it was unintentional and not the result of any failure to exercise ordinary care on his part.
ARGUED SEPTEMBER 6, 1966 — DECIDED SEPTEMBER 23, 1966 — REHEARING DENIED OCTOBER 14, 1966 — CERT. APPLIED FOR.
This was a suit by the plaintiff to recover damages for personal injuries sustained in an automobile collision which, according to the allegations of the petition, occurred as follows: "About 7:00 o'clock in the evening of October 26, 1963, your petitioner was riding as a passenger in the front seat of a 1962 Oldsmobile being driven by Cecil M. Tuten in a westerly direction in the outside or northernmost of the westbound traffic lanes of U.S. Highway 80, and at the same time a Chevrolet panel truck owned and being driven by the defendant proceeded eastwardly in the outside or southernmost lane for eastbound traffic, and while the Oldsmobile was proceeding westwardly up the incline of the viaduct the truck of defendant came over the crest of the viaduct traveling in the opposite direction; and when the meeting vehicles were approximately fifty feet apart defendant drove his truck to its left into and across his inside or northernmost eastbound traffic lane and then continued across the center line of the four-laned highway and into the vehicle in which petitioner was riding and which was traveling westwardly in its proper lane, — and your petitioner was injured in the collision." The petition charged among other grounds that the defendant was negligent in "Failing to drive his panel truck within a single lane for traffic, in violation of Section 68-1640 (a) of the Code of Georgia, — which violation of law constituted negligence per se," and in "Driving his panel truck to his left and across the center line of the highway and into the path of and into, the automobile in which petitioner was riding and which was being driven lawfully in the opposite direction on the road."
The defendant in his answer denied the acts of negligence charged against him and alleged that the occurrence complained of was caused by the act of a third party in striking the rear of his vehicle and forcing him into the opposite lane of traffic. In an amendment to his answer, the defendant further alleged that the occurrence was, as to the defendant, an accident in the legal sense, the defendant not being guilty of any negligence.
The case proceeded to trial on the issues thus made and upon the jury being unable to reach a verdict a mistrial was declared. The defendant then moved for a judgment in his favor notwithstanding the mistrial in accordance with his previous motion for a directed verdict, and from the denial of the same, he appealed to this court.
The plaintiff having proved that the collision occurred in the manner set forth in her petition as quoted above, that is, that the defendant crossed the center line of the highway in violation of Code Ann. § 68-1640(a) and crashed head-on into the plaintiff's automobile which was lawfully proceeding in the opposite direction, and it not being affirmatively shown by the plaintiff's evidence that the defendant's violation of this Code section was not intentionally or negligently done, the burden of proof was on the defendant to show that such action on his part was caused by the act of a third party in striking the rear of his vehicle and was without negligence on his part, as alleged in his answer to the petition. Cruse v. Taylor, 89 Ga. App. 611 (1b) ( 80 S.E.2d 704). As stated in the Cruse case, at p. 615, "Where it is made to appear that the thing that happened would be a violation if done intentionally or if done negligently, and the evidence does not demand a finding that it was not done intentionally or negligently, this constitutes the establishment prima facie of negligence per se. It then devolves upon the defendant to produce evidence in his own behalf to satisfy the jury that the operation of the automobile was not a violation of a statute or ordinance because unintentional and not the result of any failure to exercise ordinary care on his part."
While there is evidence in the record from which the jury could have reached the conclusion that a third vehicle was involved, the defendant's testimony is to the effect that he did not see lights approaching from his rear and that he has no recollection about any impact to the rear of his vehicle. The record is void of testimony from the driver or any occupant of the alleged third vehicle.
The appellant cites and relies upon the case of Jackson v. Martin, 89 Ga. App. 344 ( 79 S.E.2d 406). The present case is distinguishable since the plaintiff's evidence in the Jackson case affirmatively showed that the defendant's car was on the wrong side of the road without negligence on the part of the defendant driver. Such road conditions as there existed are not present here.
Questions of proximate cause are for the jury to resolve, and should a jury conclude from all the evidence that a third vehicle was involved it would be further authorized to conclude under the plaintiff's evidence that the proximate cause of the collision was the changing of lanes by the defendant's vehicle without proper warning to the vehicle approaching from his rear.
Since the evidence in behalf of the defendant did not demand a finding that his violation of the statute was unintentional and without negligence on his part, the trial court did not err in denying his motion for judgment notwithstanding the mistrial.
Judgment affirmed. Bell, P. J., and Eberhardt, J., concur.