Faust v. Buchanan

Eberhardt, Judge. Madison Faust brought suit against Joseph C. Buchanan as the administrator of the estate of B. P. Buchanan to recover damages for injury to his motorized mechanical cotton picker which occurred when the deceased drove his automobile into the rear of the picker while it was being moved on the highway by plaintiff’s servant, and defendant counterclaimed for the funeral expenses and damage to the automobile of the deceased. Plaintiff’s evidence indicated that the cotton picker was being driven from Pine Mountain to his farm in Terrell County by a servant who was experienced in operating it, that the collision occurred about 7 p.m. or shortly thereafter at a place on the highway which wa's for at least a mile straight and level, that it was on the right side of the road, traveling at about 11 miles per hour and had all lights on — which included two headlights on the front, two red lights which either flashed or remained red, and one white light on the rear, and that these were visible for a distance of a quarter to half a mile. Plaintiff was out in his pick-up truck looking for the picker, seeking to ascertain whether the driver wished to take it on to the farm or to park it at an appropriate place and go home for the night. He came upon it within a very few minutes after the collision, and was the first person on the scene. He found the driver lying in the road, unconscious and with a broken arm. The Buchanan car had hit the picker squarely in the rear, severely damaging it, and had then gone off into the ditch on the left side of the road. Mr. Buchanan was in the car and apparently dead. His car had been severely damaged also. Defendant’s evidence indicated that the red lights on the rear of the picker were not on, but that the white light was. The trial court refused to direct a verdict against the counterclaim, surmising that the single white light shining from the rear may have confused Mr. Buchanan, leading him to believe that he was meeting a vehicle of some sort with only one light, and that this may have been the cause of the collision. The jury returned a verdict for defendant on his counterclaim, and for the defendant on the main action, and plaintiff appeals, [16] urging that the verdict is without evidence to support it and that the court erred in denying a request to charge on following too closely. Held: Submitted November 2, 1970 Decided November 10, 1970 Rehearing denied November 25, 1970 — Cert, applied for. Beauchamp, Engram & Greenholtz, B. Sam Engram, Jr., for appellant. Smith & Hargrove, William E. Smith, for appellee. 1. While the verdict may have been strongly against the weight of the evidence, and the trial court might have granted a new trial on that ground, this court must, on appeal, construe the evidence in support of the verdict (Young Men’s Christian Assn. v. Bailey, 112 Ga. App. 684, 690 (146 SE2d 324); Whatley v. Henry, 65 Ga. App. 668, 682 (16 SE2d 214)), and if there is any evidence to support the verdict an affirmance results. Middleton v. Waters, 205 Ga. 847 (5) (55 SE2d 359). A motorized cotton picker is a motor vehicle within the meaning of Code Ann. §68-1502 (1) (a) which is required, under §68-1705, to have "at least one tail lamp mounted on the rear, which when lighted as hereinbefore required shall emit a red light plainly visible from a distance of 500 feet to the rear . . .” and we can not say that there is not some evidence upon which the jury could find that although there were tail lamps on plaintiff’s picker which, if lighted, would have emitted red lights that would have complied with the law, these were not lighted at the time of the collision, and that the only tail lamp that was lighted emitted a white light, and that this may have caused the collision to occur. Cf. Whatley v. Henry, 65 Ga. App. 668 (2), supra. 2. A careful reading of the transcript does not indicate that there was any evidence indicating that the deceased was closely "following” the cotton picker, and hence denial of the request to charge the provisions of Code Ann. § 68-1641 on that matter was not error. Ellison v. Robinson, 96 Ga. App. 882 (5) (101 SE2d 902). Judgment affirmed. Jordan, P. J., and Pannell, J., concur.