Opinion
36726.
DECIDED MAY 28, 1957.
Action for damages; nonsuit. Before Judge Blackshear. Hall City Court. February 20, 1957.
Frank B. Stow, Robert E. Andrews, for plaintiff in error.
Robert J. Reed, R. Wilson Smith, Jr., contra.
Since the evidence did not authorize a finding that the defendant was negligent, the court did not err in awarding a nonsuit.
DECIDED MAY 28, 1957.
Hoyt J. Morton sued G. L. Davies for damages allegedly caused by the defendant's negligence. The plaintiff alleged in part as follows: that on the 25th day of September, 1956, he was working on a Ford automobile located at Hudgins Garage in Gainesville, Hall County, Georgia, and that on said date the defendant named herein drove his Buick automobile into said garage upon and onto a ramp located in said garage; that the defendant parked said Buick automobile on said ramp in said garage in an inclined position, immediately behind the plaintiff and the automobile he was working on; that the defendant named herein maintained complete possession, custody and control of said Buick automobile at all times; that while the defendants' said automobile was so parked on said ramp, and while the plaintiff was in a kneeling position working on said Ford automobile, with his back to the defendant and in full view of the defendant, suddenly and without any warning whatsoever to the plaintiff he released the brake on said automobile and/or allowed said automobile to roll down said ramp into and against the plaintiff, with great force and violence; that all of the above enumerated injuries to his person were directly and proximately caused by the negligence of the defendant, as will be hereinafter set out; that the defendant was negligent in the following manner and particulars: (a) by operating his said automobile at said time and place in a manner so as to endanger the life, limb and property of others, including the plaintiff, same being negligence per se; (b) by parking his said Buick automobile on said ramp in a manner so that said automobile would run down said ramp into and against the plaintiff; (c) by failing to have his said automobile under proper and immediate control so as to avoid running into and injuring the plaintiff; (d) by failing to brake his said automobile sufficiently so as to prevent it from running down said ramp into and against the plaintiff; (e) by failing to give any warning to the plaintiff of his intention to run said automobile down said ramp over the place where the plaintiff was kneeling; that all of the above enumerated acts of negligence by the defendant were the direct and proximate cause of his injuries; that the defendant was at all times in the complete possession, custody and control of said Buick automobile, and that the defendant could have avoided damaging and injuring plaintiff by the exercise of ordinary care.
On the trial of the case the court awarded a nonsuit and the plaintiff excepts.
1. The evidence did not authorize the finding that while the car was in the garage and during the time the back-up lights were being installed and at the time the car rolled against the plaintiff, the car was in the custody and control of the defendant. The evidence showed that the garage owner, Mr. Hudgins, had complete charge of installing the back-up lights on the defendant's automobile. The fact that the defendant approved the plans of where the back-up lights were to be placed as drawn by Mr. Hudgins and that the defendant at the direction of and under the supervision of Mr. Hudgins rendered some assistance to Mr. Hudgins, did not give the defendant custody and control of his automobile at the time.
2. The evidence failed to show that the defendant was negligent in the manner in which he parked his automobile. The automobile remained stationary and was secure for two hours and remained so until Mr. Hudgins reached inside, whereupon immediately the car began to roll. While Mr. Hudgins testified at first that he did not touch anything in the automobile when he reached in, he later testified that he could have pulled the brake release lever by mistake. This is perfectly feasible because the reason Mr. Hudgins reached inside the car was to pull the hood release lever. From the facts that the car remained stationary and secure for two hours after it was parked by the defendant and that it began rolling immediately upon Mr. Hudgins' reaching inside to pull the hood release lever and that Mr. Hudgins testified that he could have possibly by mistake pulled the brake release lever, the conclusion is inescapable that the car was set in motion due to same action on the part of Mr. Hudgins and not because of the manner in which the defendant parked or braked the automobile.
Since the evidence did not authorize any finding of negligence on the part of the defendant, the court did not err in awarding a nonsuit.
Judgment affirmed. Quillian and Nichols, JJ., concur.