The trial judge erred in directing a verdict for the defendant.
Robert L. Garrison filed an action in Paulding Superior Court against Mrs. Thomas J. Garmon, administratrix of the estate of Thomas J. Garmon, for damages arising out of a collision between the plaintiff's automobile and an automobile driven by Thomas J. Garmon. The plaintiff's petition alleged in part: "On the 10th day of November, 1952, at approximately 7:45 a.m., the plaintiff was driving his 1952 Chevrolet automobile in a southeasterly direction on Georgia Highway No. 6 at a point approximately 3.4 miles southeast of Dallas, Georgia. At said time and place petitioner was traveling at approximately 35 miles per hour and was driving immediately behind a State Highway truck as his automobile reached the top of a hill. When petitioner came over the hill as aforesaid, there was before him 1,590 feet of straight highway with no obstructions to prevent him from seeing a properly lighted automobile coming from the opposite direction. The plaintiff did not attempt to pass the truck until he was in a position to see any oncoming automobile, properly lighted, and the plaintiff, seeing none, turned his automobile to the left and attempted to pass the truck immediately before him. When plaintiff had reached a point parallel with the State Highway truck he met a Ford automobile being driven by Thomas J. Garmon, which was traveling at a speed of approximately 50 miles per hour. When Thomas J. Garmon's unlighted automobile first came in view of the plaintiff it was so close to plaintiff's automobile that it was impossible for plaintiff to stop, or to pull in behind the truck immediately to his right and the plaintiff in a desperate effort to avoid a head-on collision turned his automobile to the left and attempted to get off the highway, but notwithstanding plaintiff's efforts the front of the automobile being driven by Thomas J. Garmon struck the front of plaintiff's automobile head-on and a violent collision resulted. When the automobiles collided as aforesaid the left side of plaintiff's automobile was approximately 6 feet north of the north edge of the highway and the collision was so violent that plaintiff's automobile was completely turned around in the opposite direction from which it was being driven. At the time of the collision there was a heavy, dense fog which restricted vision to less than 500 feet along said highway. At the time of the collision the lights on plaintiff's automobile were burning, but the lights on the automobile being driven by Thomas J. Garmon were not burning. As a result of the collision plaintiff received such severe injuries that he was hospitalized for 21 days. He suffered a severe concussion of the brain and both his mind and eyesight have been permanently damaged."
After denying the material portions of the plaintiff's petition, the defendant's answer was in part: "That on November 10, 1952, at approximately 8 a.m., Thomas J. Garmon, now deceased, of whom defendant is the widow, was driving his 1948 Ford automobile in a northwesterly direction on Georgia Highway No. 6 at a point about 3.4 miles southeast of Dallas, Paulding County, Georgia. That the point just described, 3.4 miles southeast of Dallas, Georgia, lies on a straight portion of Georgia Highway No. 6, between the crests of two hills, there being a space of approximately 1,300 feet between the crests of the two hills. That at said time and place the late Thomas J. Garmon was driving his automobile at the rate of about 30 miles per hour. That after the said Thomas J. Garmon had traversed approximately 600 to 700 feet of said 1,300-foot stretch of straight highway between the two hills, a truck approached him going in the opposite direction on said highway. That just as the said Thomas J. Garmon was meeting said truck, the plaintiff suddenly, and without any warning whatsoever, and without blowing his horn or making any signal whatsoever, cut out from behind the said truck. That when plaintiff cut out from behind the said truck, plaintiff turned completely into the said Thomas J. Garmon's side of the highway and drove his automobile directly at the automobile driven by the late Thomas J. Garmon. That immediately when plaintiff had turned his automobile into the side of the road on which said Thomas J. Garmon was operating his automobile and on which side of the road Thomas J. Garmon had a right to operate his automobile, Thomas J. Garmon turned his automobile to the right as far as he could turn it so that both of the right-hand wheels of his automobile went off the highway and were two to four feet into the shoulder of the highway just inside the guard rails, which guard rails prevented Thomas J. Garmon from turning his automobile further to the right. That as plaintiff's automobile approached the automobile driven by Thomas J. Garmon, plaintiff's automobile suddenly veered to the left in the direction of the guard rail on the side of the highway on which Thomas J. Garmon was operating his car, and the automobile of the plaintiff skidded to plaintiff's left, and as it skidded drove into the front of the automobile operated by Thomas J. Garmon. That at said time and place, and immediately before the collision as aforesaid, the plaintiff was operating his automobile on the side of the road on which Thomas J. Garmon had a right to operate his automobile, the plaintiff's speed at said time and place being approximately 60 miles per hour. The plaintiff was guilty of negligence, which negligence constituted the proximate cause of the collision in this case, in that in meeting the vehicle driven by Thomas J. Garmon, the plaintiff failed to turn his vehicle to the right of the center of the highway so as to pass without interference, the same constituting a violation of subsection (c) of Code 68-303. That at said time and place the plaintiff was in violation of subsection (d) of said Code section in that he attempted to pass a vehicle ahead of him at a time when the way ahead was not clear of approaching traffic, at a time when the width of the roadway was not sufficient to allow his vehicle to pass to the right of the center thereof in the direction in which his vehicle was moving, which act on the part of the plaintiff constituted negligence, which negligence was the proximate cause of the collision. That at said time and place, the plaintiff was negligent in turning his said automobile suddenly and without warning from his lane of the road into the lane of the road occupied by the automobile driven by Thomas J. Garmon, upon which lane of the road the said Thomas J.
Garmon had a right to be driving his automobile. Said negligence on the part of the plaintiff constituted the proximate cause of the collision between the two automobiles. Defendant shows further that the said Thomas J. Garmon was operating his automobile at said time and place in accordance with the laws of the State of Georgia, and that the said Thomas J. Garmon had a right to expect that the plaintiff in this case was operating his automobile in accordance with the laws of the State of Georgia, and that he would not suddenly and without warning turn his automobile into the lane occupied by the said Thomas J. Garmon, on which lane Thomas J. Garmon had a right to be, in a place where the sole distance available for passing by the plaintiff was less than 500 feet and going up a hill. Defendant shows that the said Thomas J. Garmon in operating his automobile at said time and place was in the exercise of ordinary care in the premises and that the proximate cause of said collision lay in the affirmative acts of the plaintiff in that the plaintiff failed and refused to obey the laws of Georgia as set out and described herein in detail, and that plaintiff failed to yield the right of way to the said Thomas J. Garmon who was on said highway on his side of the road and in a place where he had a right to be; and that therefore the said Thomas J. Garmon was not in any way responsible for any damages or any injuries which the plaintiff might have sustained."
There were no demurrers filed to the petition and the case went to trial. The plaintiff testified that he had no knowledge of the collision because of a lack of memory caused by an injury which he received in the collision.
Eldon Ferguson, a witness for the plaintiff, testified in part: That he was riding in a truck which was behind the plaintiff's automobile; that the plaintiff's lights were burning but that Thomas J. Garmon's lights were not burning; that visibility was approximately 500 feet due to the fog; that it was a distance of 500 feet between the crests of the two hills between which the collision occurred; that the plaintiff left his lane to pass a truck approximately 300 feet from the crest of the hill nearest Dallas; that he was traveling in the direction from Dallas to Atlanta; and that the plaintiff had already passed the truck in which the witness was riding, and the plaintiff had to be going from 45 to 60 miles an hour to pass the truck ahead of him just before the crash.
Jack Stevens testified: That visibility was about 200 feet; that he did not remember whether either the plaintiff's or Thomas J. Garmon's automobile lights were burning; that the witness was about 50 to 75 feet from Garmon's automobile when he first saw it; and that he was driving the truck which the plaintiff attempted to pass.
R. D. Ruff, a witness for the defendant, testified in part: That he was a trooper with the Georgia State Patrol; that the collision occurred approximately 400 feet from the crest of the hill going toward Atlanta; and that he estimated the plaintiff's speed at 60 miles per hour and Garmon's at 40 miles per hour. Claude Hale, another witness for the defendant, testified that the collision occurred approximately 500 feet from the crest of the hill and that visibility was approximately 500 feet. Grady Hayes, a witness for the defendant, testified that Garmon's lights were burning, that visibility was approximately 200 feet, that the collision occurred approximately 200 feet from the crest of the hill toward Atlanta, and that the plaintiff's lights were burning. The defendant, Mrs. Thomas J. Garmon, testified as to her husband's condition when she went to see him in the hospital.
The defendant made a motion for a directed verdict, which was granted. The plaintiff excepted to that ruling and the case is here for review.
1. "When there is any material conflict in the evidence, and where the evidence introduced, with all reasonable deductions and inferences therefrom, does not demand a particular verdict, it is error to direct a verdict." Peck v. Baker, 76 Ga. App. 588 (1) (46 S. E. 2d 751); Code 110-104. The jury may accept a portion of a witness's testimony and reject a portion. Sappington v. Bell, 115 Ga. 856 (1) (42 S. E. 233); Burke v. State, 196 Ga. 702, 707 (27 S. E. 2d 313); Lawhon v. Henshaw, 63 Ga. App. 683 (3) (11 S. E. 2d 846); Johnson v. State, 69 Ga. App. 663 (1) (26 S. E. 2d 482). Questions of negligence, reasonable care, contributory negligence and proximate cause are questions for the jury. There was some evidence in the instant case to sustain the plaintiff's contention that the defendant's husband was guilty of one or more acts of negligence alleged in the petition, and that the commission of such acts of negligence proximately caused the injuries sustained by the plaintiff. The trial judge erred in directing a verdict for the defendant.
2. The testimony of Mrs. Thomas J. Garmon as to her husband's condition while in the hospital, under the peculiar facts disclosed by the record, was irrelevant and immaterial and should not have been admitted.
Judgment reversed. Felton, C. J., and Nichols, J., concur.