Shannon v. Smith

Court of Appeals of Georgia

Shannon v. Smith

99 S.E.2d 569, 96 Ga. App. 131, 1957 Ga. App. LEXIS 521

CourtCourt of Appeals of Georgia

DecidedJune 11, 1957

Docket36614

StatusPublished

Cited by4 cases

This text of 99 S.E.2d 569 (Shannon v. Smith) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Shannon v. Smith, 99 S.E.2d 569, 96 Ga. App. 131, 1957 Ga. App. LEXIS 521 (Ga. Ct. App. 1957).

Pincite

Opinions

Nichols, J.

1. In our opinion the testimony of tíre defendant Eddie James Shannon, the driver of the tractor-trailer, and the only eyewitness to this tragedy that testified, was alone sufficient to have authorized the jury’s verdict in this case. The defendant Shannon testified to facts that would indicate that he traveled approximately 612 feet, after seeing the plaintiff’s husband, the deceased driver of the pick-up truck move from the right lane to the left lane of the highway when the plaintiff’s husband was only 124 feet away from the intersection of the two roads which proved to the jury with mathematical certainty that the defendant Shannon was traveling considerably faster tifian the plaintiff's husband. This difference in the speed of the two vehicles, coupled with pictures of the demolished pick-up truck and other physical facts and circumstances furnished the jury with ample evidence upon which to found its verdict.

2. The uncontradicted evidence shows that the trailer had no brakes. Although it was not negligence per se to operate the trailer without brakes, the conclusion is unavoidable that not to have brakes on a motor vehicle is a factor that the jury might have considered contributed materially to the driver’s inability to keep the vehicle under immediate control, particularly where, as in this case, there is evidence that the tractor-trailer was traveling not less than seventy miles an hour at the time of the impact. The evidence shows further that the tractor-trailer hit the pick-up truck after it had completed its left turn into the dirt road and in fact had traveled north along the dirt road for a [137]*137distance of some 25-30 feet when the tractor-trailer hit it broadside and while traveling west, and the trailer-tractor having-begun leaving the paved portion of the highway 263 feet east of the intersection of the two roads, and continued to travel after the impact an additional 44 feet before finally coming to rest on its side out in a field.

3. Moreover Eddie James Shannon was subject to being impeached. “Where a witness has been impeached by prior contradictory statements the weight and credit to be given all or any part of his testimony is for the jury, who' are authorized to believe a part and disbelieve other parts of the testimony of such witness.” A. C. L. R. Co. v. Heyward, 82 Ga. App. 337 (4b) (60 S. E. 2d 641). Thus the jury could have disbelieved that part of the testimony of the defendant Shannon wherein he testified that the turn indicator on the Smith pick-up truck was not on and also disbelieved that portion of Shannon’s testimony wherein he testified that the Smith pick-up truck was on the wrong side of the road. Contrarily to disbelieving all of Shannon’s testimony, although impeached, the jury could have believed under the evidence in this case that the defendant Shannon was negligent in that he did not apply his brakes, drove without brakes on the trailer and operated his tractor-trailer at seventy miles an hour and that he drove his tractor-trailer completely off the pavement 162 feet from the point of collision, after having lost control of his vehicle. Knowledge of the intersection was imputable to Shannon because of his own testimony, which the jury had a right to believe. He stated that he had traversed this particular road at this particular place twice a day for several months prior to the collision. Even had the jury believed that Smith, the driver of the pick-up truck was guilty of negligence and was violating one or more of the State statutes as contended by the plaintiffs in error it still would be a question for the jury. It is too well settled to require citation that questions of what negligence as well as whose negligence constituted the proximate cause are for the jury’s determination.

We think it apparent from the evidence that if Shannon had not been driving too fast and had been in control of the tractor-trailer at the time he could in the exercise of ordinary care have [138]*138stopped his vehicle and have avoided the collision 'altogether.

Judgment affirmed.

Gardner, P.J., Townsend, Carlisle, and Quillian, JJ., concur. Felton, C. J., dissents.

Free access — add to your briefcase to read the full text and ask questions with AI

Nichols, J.

1. In our opinion the testimony of tíre defendant Eddie James Shannon, the driver of the tractor-trailer, and the only eyewitness to this tragedy that testified, was alone sufficient to have authorized the jury’s verdict in this case. The defendant Shannon testified to facts that would indicate that he traveled approximately 612 feet, after seeing the plaintiff’s husband, the deceased driver of the pick-up truck move from the right lane to the left lane of the highway when the plaintiff’s husband was only 124 feet away from the intersection of the two roads which proved to the jury with mathematical certainty that the defendant Shannon was traveling considerably faster tifian the plaintiff's husband. This difference in the speed of the two vehicles, coupled with pictures of the demolished pick-up truck and other physical facts and circumstances furnished the jury with ample evidence upon which to found its verdict.

2. The uncontradicted evidence shows that the trailer had no brakes. Although it was not negligence per se to operate the trailer without brakes, the conclusion is unavoidable that not to have brakes on a motor vehicle is a factor that the jury might have considered contributed materially to the driver’s inability to keep the vehicle under immediate control, particularly where, as in this case, there is evidence that the tractor-trailer was traveling not less than seventy miles an hour at the time of the impact. The evidence shows further that the tractor-trailer hit the pick-up truck after it had completed its left turn into the dirt road and in fact had traveled north along the dirt road for a [137]*137distance of some 25-30 feet when the tractor-trailer hit it broadside and while traveling west, and the trailer-tractor having-begun leaving the paved portion of the highway 263 feet east of the intersection of the two roads, and continued to travel after the impact an additional 44 feet before finally coming to rest on its side out in a field.

3. Moreover Eddie James Shannon was subject to being impeached. “Where a witness has been impeached by prior contradictory statements the weight and credit to be given all or any part of his testimony is for the jury, who' are authorized to believe a part and disbelieve other parts of the testimony of such witness.” A. C. L. R. Co. v. Heyward, 82 Ga. App. 337 (4b) (60 S. E. 2d 641). Thus the jury could have disbelieved that part of the testimony of the defendant Shannon wherein he testified that the turn indicator on the Smith pick-up truck was not on and also disbelieved that portion of Shannon’s testimony wherein he testified that the Smith pick-up truck was on the wrong side of the road. Contrarily to disbelieving all of Shannon’s testimony, although impeached, the jury could have believed under the evidence in this case that the defendant Shannon was negligent in that he did not apply his brakes, drove without brakes on the trailer and operated his tractor-trailer at seventy miles an hour and that he drove his tractor-trailer completely off the pavement 162 feet from the point of collision, after having lost control of his vehicle. Knowledge of the intersection was imputable to Shannon because of his own testimony, which the jury had a right to believe. He stated that he had traversed this particular road at this particular place twice a day for several months prior to the collision. Even had the jury believed that Smith, the driver of the pick-up truck was guilty of negligence and was violating one or more of the State statutes as contended by the plaintiffs in error it still would be a question for the jury. It is too well settled to require citation that questions of what negligence as well as whose negligence constituted the proximate cause are for the jury’s determination.

We think it apparent from the evidence that if Shannon had not been driving too fast and had been in control of the tractor-trailer at the time he could in the exercise of ordinary care have [138]*138stopped his vehicle and have avoided the collision 'altogether.

Judgment affirmed.

Gardner, P.J., Townsend, Carlisle, and Quillian, JJ., concur. Felton, C. J., dissents.

Cite This Page — Counsel Stack

Bluebook (online)

99 S.E.2d 569, 96 Ga. App. 131, 1957 Ga. App. LEXIS 521, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shannon-v-smith-gactapp-1957.

Opinions

Related

Cite This Page — Counsel Stack