Summary
In Thomas, the defendant admitted she was not watching where she was going prior to impact, and the court specifically noted that there was no evidence to suggest that the incident was unavoidable.
Summary of this case from Xiong v. LankfordOpinion
A92A1459.
DECIDED OCTOBER 20, 1992. RECONSIDERATION DENIED OCTOBER 30, 1992.
Action for damages. Muscogee State Court. Before Judge Johnston.
L. B. Kent, for appellant.
Page, Scrantom, Harris Chapman, Richard A. Marchetti, Alvin L. Harris, for appellee.
Jimmy Thomas sued Nancy Kite for personal injuries he allegedly received when the automobile in which he was a passenger was struck in the rear by the vehicle driven by Kite. The jury returned a verdict in favor of Kite. Thomas appeals, enumerating as error the denial of his motion for directed verdict on the issue of liability, the sufficiency of the evidence to support the verdict, and certain charges which the trial judge either gave or refused to give.
The evidence showed that after Kite drove through an intersection she glanced at a woman selling flowers on the side of the road. When she looked back up, the traffic in front of her had stopped in order to allow a car to enter or exit the roadway. Kite applied her brakes but was unable to stop before she hit the rear of the car in which Thomas was a passenger.
1. Thomas contends the trial court erred in denying his motion for directed verdict. We agree. As in Drake v. Page, 195 Ga. App. 226 ( 393 S.E.2d 89) (1990), it is uncontroverted that Kite admitted that she did not have her eyes on the road immediately before seeing the cars stopped in the road in front of her because she had glanced up at a person selling flowers. No evidence was presented which could ascribe any negligence to the driver of the vehicle in which Thomas was riding, that the accident was unavoidable, or that it was the result of an unforeseen or unexplained cause. See Reed v. Heffernan, 171 Ga. App. 83, 87 ( 318 S.E.2d 700) (1984).
"`The driver of a motor vehicle has no right to assume that the road ahead of him is clear of traffic, and he must maintain a diligent lookout therefor.' [Cit.]" Drake, supra at 227. Kite admitted she looked away from the road and no evidence was presented suggesting that she would not have been able to avoid the collision if she had been looking. Accordingly, we hold that the trial court erred in denying Thomas' motion for a directed verdict on the issue of liability and remand the case to the trial court with direction that the issue of damages only be resolved in a new trial.
2. The remaining enumerations of error asserted by Thomas are rendered moot by our holding in Division 1 above.
Judgment reversed. Carley, P. J., and Pope, J., concur.