Bailey v. Bartee

Birdsong, Presiding Judge. This is an appeal of the judgment of the superior court upholding the verdict of the jury entered in favor of appellees/defendants, and of the denial of appellant’s motion for new trial. Issues unrelated to this appeal previously were addressed in the companion case of Bailey v. Hall, 199 Ga. App. 602 (405 SE2d 579). This case arises out of a collision at an intersection controlled by a traffic signal, between a vehicle driven by appellant’s former husband in which appellant was a passenger and a vehicle driven by appellee Roger Bartee. Held: 1. Appellant asserts the trial court erred by failing to instruct the jury regarding the provisions of OCGA § 40-6-71, pertaining to vehicles turning left at intersections. The trial court refused to give the requested instruction but did charge the jury as to selected provisions of OCGA §§ 40-6-20 and 40-6-21. Appellees assert and we agree that pursuant to the precedent of Corley v. Harris, 171 Ga. App. 688 (3) (320 SE2d 833), the trial court did not commit instructional error when it charged the jury on OCGA § 40-6-21, rather than on OCGA § 40-6-71. Corley v. Harris, supra at 689 (3), holds that the pertinent provisions of OCGA § 40-6-21 “specifically concerns vehicular traffic at intersections regulated by a traffic light,” while OCGA § 40-6-71 “pertains to vehicular traffic turning, onto either an alley, private road or drive, or another public road, at [464] an intersection unregulated by a traffic light”; accordingly, an instruction on OCGA § 40-6-71 is deemed inappropriate in cases, such as the one at bar, involving vehicular traffic turning at an intersection regulated by a traffic light. Appellant, however, argues that the ruling in Corley v. Harris, supra, should be overruled, particularly in light of the subsequent case of Branch v. State, 175 Ga. App. 696 (334 SE2d 24). Compare Thompson v. Hill, 143 Ga. App. 272 (1), (3) (238 SE2d 271). Appellees argue that this court never addressed the issue raised in the case at bar in Branch v. State, supra, and that the reference to OCGA § 40-6-71 in Branch was simply dictum. While this court’s application of OCGA § 40-6-71 cannot convincingly be explained as dictum, the facts and issues addressed in Branch clearly are distinguishable from those in this case. Likewise, we find Thompson v. Hill, supra, to be factually distinguishable. Corley v. Harris, supra, however, is not distinguishable from the issues or facts confronting us and is therefore deemed to be controlling. Accordingly, we find the trial court did not err in its failure to charge as to the provisions of OCGA § 40-6-71. While OCGA § 40-6-21 could be drafted to provide express statutory guidance to a prospective turning motorist confronted by a green or steady yellow signal when an approaching automobile is beyond the intersection and yet so close as to constitute an immediate hazard, this is a matter within the prerogative of the General Assembly. 2. Appellant asserts the trial court erred in denying his motion for new trial, as inter alia the jury verdict is contrary to the evidence and contrary to the law as charged by the trial court. Regarding the asserted failure of the trial court to charge as to OCGA § 40-6-71, see Division 1 above. Appellant has enumerated no other charging errors. Appellant argues inter alia that the record fails to establish a lack of negligence on the part of Roger Bartee as to the manner in which he attempted to negotiate the left turn. The burden of proof rested upon appellant/plaintiif; by its verdict the jury inherently concluded appellant failed to carry its burden in the manner required by law and as addressed in the charges of the trial court. The record establishes that at the time and place of the accident the streets were wet and the speed limit was 25 miles per hour. Ms. Benton, a witness who was in the car directly behind Roger Bartee, testified that “we pulled up to the intersection and the light was green, and Mr. Bartee went out into the intersection and . . . was waiting for oncoming traffic. When the light turned yellow, Mr. Bartee waited until the . . . oncoming traffic stopped, and then he proceeded to turn left onto Slappey Boulevard. ... A car came very fast. . . from Pine onto Dawson Road, and struck Mr. Bartee on the right side of his car.” Appellant testified that she was reading a book as the car driven by her husband [465] approached the intersection, and that she looked up and saw Mr. Bar-tee’s car right in front of them only after her husband warned: “Hold on.” Mr. Bartee testified that after he stopped in the intersection and the opposing traffic had stopped and come to a halt, he could see three or four car lengths down the northernmost lane and could see nothing coming as he began to make his turn. Mr. Hall, appellant’s former husband, testified he was driving “roughly” 37-38 miles per hour as he approached the intersection, he could not see Mr. Bartee sitting in the intersection, and he did not see Mr. Bartee’s car “until he pulled out.” Mr. Black, who was the second car back in another lane traveling in the same direction as Mr. Hall, testified that the Hall car passed him going about 40 miles per hour' and he realized Hall’s car was going to strike the Bartee car, which was then appearing to be making a left turn. Thus, for example, the jury could reasonably infer from Mr. Hall’s testimony, coupled with the testimony of Mr. Bartee, that it was physically impossible for the drivers of these two cars to see each other until after Mr. Bartee’s car had already “pulled out” to negotiate the turn. Issues of negligence, including, when applicable, the related issues of assumption of the risk, lack of ordinary care for one’s own safety, lack of ordinary care in avoiding the consequences of another’s negligence and comparative negligence, ordinarily are matters to be resolved before a jury. See Thompson v. Crownover, 259 Ga. 126 (5) (377 SE2d 660); Soto v. Roswell Townhomes, 183 Ga. App. 286, 288 (358 SE2d 670). Based on the posture of this record, we cannot find as a matter of law that Roger Bartee was negligent. The issue of his negligence clearly was contested, and the jury is the exclusive arbiters of contested questions of fact. Taylor v. State, 2 Ga. App. 723, 729 (59 SE 12) (province of jury as exclusive arbiters of fact is holy ground). An appellate court does not weigh the evidence, but determines sufficiency; neither does it determine witness credibility. Locke v. Vonalt, 189 Ga. App. 783, 785 (1) (377 SE2d 696); Horney v. Lawrence, 189 Ga. App. 376 (3) (375 SE2d 629). Moreover, “[o]n appeal an appellate court is bound to construe the evidence in support of the verdict and judgment [and every permissible presumption and inference must be drawn in favor thereof; and, after apply the foregoing rule], if there is some evidence to support the verdict we will uphold the judgment.” Locke v. Vonalt, supra; Worn v. Sea-Cold Svcs., 135 Ga. App. 256 (3) (217 SE2d 425). There exists such competent evidence of record in this case. Judgment affirmed. Andrews, J., concurs. Beasley, J., concurs specially.