1. Since the defendant failed to prove that it was free from negligence in maintaining admittedly defective brakes which caused the collision, the trial judge erred in failing to direct a verdict for the plaintiff as to negligence.
2. In view of the ruling herein made, we need not consider the enumerations of error relating to certain requests to charge.
This case arose out of a collision between a Metropolitan Transit System passenger bus and a pick-up truck owned and operated by Buckhead Glass Company, Inc., wherein the truck being driven by an employee of Buckhead Glass Company, Inc., struck the rear end of the passenger bus as it was stopped at a traffic light. The plaintiff brought suit in Fulton Superior Court for damages she allegedly received as a passenger of the bus as a result of the collision.
Defendant Buckhead Glass Company, Inc., in its answer denied the material allegations of the plaintiff's complaint. By amendment to its answer it was further alleged that: immediately prior to the collision the defendant's employee applied the brakes to the pick-up truck which he was driving; the brake pedal went entirely to the floor of the vehicle and the brakes either failed to stop or to slow the vehicle in any way causing it to collide with the bus; the defendant's employee had driven the truck approximately two miles on the morning in question and applied the brakes on a number of occasions and found them to be in good working condition; the defendant's employee could have avoided the collision if the brakes had not suddenly and without warning failed to hold; the collision was not caused by any negligence but was an "unavoidable accident."
The party stipulated that an employee of Buckhead Glass Company, Inc., while operating a pick-up truck in the scope of his employment was involved in the collision. The case came on for trial before a jury and at the close of the evidence the plaintiff moved for a directed verdict on the question of liability which was overruled by the trial judge. The jury returned a verdict in favor of the defendant and judgment was rendered accordingly. Subsequently, plaintiff filed in the alternative a motion for judgment notwithstanding the verdict or a motion for a new trial. This motion was also overruled. The plaintiff appeals from the judgment adverse to her and enumerates as error the refusal to grant the motion for a directed verdict, the refusal to grant the judgment notwithstanding the verdict and the refusal to give certain written requests to charge.
1. The defendant in its answer admitted that defective brakes caused the collision. It thus assumed the burden of proving that it (through its employee) was free from negligence in maintaining them. In discussing former Code 68-302 relating to the duty of maintaining efficient and serviceable brakes, this court in Cruse v. Taylor, 89 Ga. App. 611
, 616 (80 SE2d 704
), cited with approval the following language contained in Purser v. Thompson, 31 Tenn. App. 619 (219 SW2d 211): "We think when it appeared from the proof that defendant's brakes were inadequate to control the movements of the car as required by statute the burden passed to defendant to convince the jury that the violation of the statute, if unintentional, was consistent with due care on his part in having the brakes inspected and repaired and that the defect existed at the time of the accident wholly without his fault." See Atlanta Metallic Casket Co. v. Hollingsworth, 104 Ga. App. 154 (8) (121 SE2d 388)
; Gregory v. Ross, 214 Ga. 306
, 311 (104 SE2d 452
). Code Ann. 68-1715 (a), (c) (Ga. L. 1953, Nov. Sess., pp. 556, 611; 1965, pp. 406, 407) now contains the statutory requirements as to brakes: "(a) Every motor vehicle, other than a motorcycle or motor-driven cycle, when operated upon a highway shall be equipped with brakes adequate to control the movement of and to stop and hold such vehicle, . . . (c) All brakes shall be maintained in good working order. . ." Here the only testimony offered as to the defendant's inspection and repair of the truck's brakes was that of the defendant's vice president and general manager. He related that responsibility was vested in the individual driver; that no repairs were made until the employee complained; that the brakes were generally relined every 20,000 to 30,000 miles. He admitted he had no individual knowledge of the particular truck. The driver did not testify.
Hence, the pleadings of the defendant, not withdrawn, were solemn admissions in judicio that the cause of the collision was defective brakes. Code 38-402. Florida Yellow Pine Co. v. Flint River Naval Stores Co., 140 Ga. 321
, 322 (78 SE 900
). Furthermore, there was no evidence showing that the defendant exercised the proper degree of, or for that matter any, care in having the brakes inspected or if necessary repaired. In Dye v. Hirsch, 92 Ga. App. 803
, 805 (90 SE2d 332
), this court held: "The defendant in this case having, by a solemn admission in judicio, established the right of the plaintiff to recover unless the affirmative defense pleaded should entitle the defendant to prevail, which admission it was impossible in law for the defendant to contradict by any evidence whatsoever (New Zealand Fire Ins. Co. v. Brewer, 29 Ga. App. 773
, 774 (6) (116 SE 922
)), and there being no proof in support of the defendant's plea of rescission . . . the verdict directed in favor of the plaintiff was demanded as a matter of law." The ruling in that case is controlling here.
The trial judge erred in failing to direct a verdict for the plaintiff as to negligence.
2. The second headnote requires no elaboration.
ON MOTION FOR REHEARING
Movant contends this court's decision that it was error for the trial judge to refuse to direct a verdict is contrary to some 145 decisions of our appellate courts. Formerly, it was the rule in civil cases and is now again the rule in criminal cases (see Pritchard v. State, 224 Ga. 776
, 779 (164 SE2d 808
)) that it is never error to refuse to direct a verdict. However, movant overlooks the fact that Section 2 of the Appellate Practice Act (Code Ann. 6-702 (b)) provides: "Motion for judgment notwithstanding the verdict need not he filed as a condition precedent to review upon appeal of an order or ruling of the trial court overruling a motion for directed verdict, but in all cases where such motion is an available remedy, the party may file the motion, or appeal directly from the final judgment and enumerate as error the overruling of the motion for directed verdict." Ga. L. 1965, pp. 18, 20; 1966, pp. 493, 494. (Emphasis supplied.)
Moreover, the plaintiff made a motion for judgment notwithstanding the verdict and enumerates as error the trial judge's overruling of such motion. Hence, this court properly considered the overruling of the motion for directed verdict.
Rehearing denied. Pannell and Evans, JJ., concur.