Opinion
46054.
SUBMITTED MARCH 1, 1971.
DECIDED APRIL 7, 1971.
Action for damages. Fulton Civil Court. Before Judge Bradford.
Swift, Currie, McGhee Hiers, Albert E. Phillips, Walter O. Lambeth, Jr., for appellant.
Frank R. Lea, for appellee.
The evidence was sufficient to sustain a verdict finding negligence on the part of the defendant driver who struck the plaintiff's automobile while it was stopped in a line of traffic.
SUBMITTED MARCH 1, 1971 — DECIDED APRIL 7, 1971.
The plaintiff's evidence, in substance, was that as she proceeded down the street two cars were in front of her. The first stopped preparatory to making a right turn. She stopped completely, then, looking in the rear view mirror saw the defendant driver "weaving," heard his brakes, and then was hit. She further stated: "He was following me close. That's when I noticed him. He quit and hit me." There was no other testimony as to the cause of the collision. The defendant appeals from a verdict in favor of the plaintiff on the ground that it is without sufficient evidence to support it.
Rear-end collisions are no exception to the rule of law that there is no absolute duty upon the following driver to avoid a collision, so that where no more appears than that there has been such a collision, with no facts proven from which an inference of negligence can be drawn, the plaintiff has failed to carry the burden of proof. Hay v. Carter, 94 Ga. App. 382 ( 94 S.E.2d 755), and, as to applicable jury instructions, see Flanigan v. Reville, 107 Ga. App. 382 ( 130 S.E.2d 258) and Davenport v. Robinson, 109 Ga. App. 753 ( 137 S.E.2d 380). Under fact situations where either the plaintiff's preponderating negligence was proved or that of the defendant was not, verdicts for the defendant have been upheld in Cartey v. Smith, 105 Ga. App. 809 ( 125 S.E.2d 723) and Simpson v. Brand, 108 Ga. App. 393 ( 133 S.E.2d 393). The question is ordinarily for the jury. A summary judgment was properly denied the plaintiff on the issue of liability in Harper v. Plunkett, 122 Ga. App. 63 ( 176 S.E.2d 187), and its grant was error in Malcolm v. Malcolm, 112 Ga. App. 151 ( 144 S.E.2d 188). The plaintiff may, however, be entitled to a summary judgment on the issue of liability where it is shown without dispute that the plaintiff was properly stopped, as at an entrance to an expressway ramp, and the defendant after having come to a halt then hit the plaintiff's car, and no other facts appear. Pike v. Stafford, 111 Ga. App. 349 ( 141 S.E.2d 780). Verdicts for the plaintiff were affirmed in Krasner v. Mullins, 108 Ga. App. 171 ( 132 S.E.2d 533); McCann v. Lindsey, 109 Ga. App. 104 ( 135 S.E.2d 519); Hein v. Morgan, 112 Ga. App. 535 ( 145 S.E.2d 780); Nathan v. Duncan, 113 Ga. App. 630 ( 149 S.E.2d 383); O'Neil v. Moore, 118 Ga. App. 424 ( 164 S.E.2d 328) and Newcomb v. Patillo, 119 Ga. App. 495 ( 167 S.E.2d 665). A reading of the facts in these latter cases shows that where the plaintiff proves the fact of the collision plus sufficient circumstances to show how he claims it occurred, and the facts of how it occurred are sufficient to raise an inference of negligence on the part of the defendant, this is sufficient although the plaintiff was also negligent (as in Hein). In McCann it was stated: "Negligence may be shown by circumstances as well as by direct testimony. If, considering all the surroundings and accompanying circumstances, an event is such `as in the ordinary course of things would not have occurred if the defendant had used ordinary care, negligence may be presumed, and place upon the defendant the burden of explaining the cause of the occurrence.'"
The general rule is that where the plaintiff driver is forced by traffic or traffic lights ahead to slow or stop, and the defendant who hits the lead car contends that he was not guilty of negligence, the question is for the jury, but such evidence is in and of itself, sufficient to sustain the inference of negligence on the part of the defendant if the jury believes such to have been the fact, and if other evidence does not demand a contrary conclusion.
Judgment affirmed. Bell, C. J., and Pannell, J., concur.