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Action for damages. Long Superior Court. Before Judge Stebbins.
STOLZ, Judge.
The trial court erred in sustaining: (1) Defendant Gordon's motion for judgment notwithstanding the mistrial, and (2) Defendants Carters' motion to dismiss for lack of jurisdiction.
Plaintiff appeals from the judgment of the Superior Court of Long County sustaining the defendant Leslie Gordon's motion for a judgment notwithstanding a mistrial and its subsequent sustaining of the motion to dismiss the defendants David L. Carter and Mrs. D. L. Carter, based on lack of the trial court's jurisdiction over their persons.
On December 29, 1965, the plaintiff, Earl Gordon, was a fare-paying passenger in an automobile driven by defendant Leslie Gordon, a resident of Long County, Georgia, when the same was involved in a collision with a milk truck driven by defendant David Carter, an agent, servant, and employee of defendant Mrs. D. L. Carter, who were both residents of Liberty County, Georgia.
The facts show that the collision occurred at approximately 6 p.m. on U. S. Highway 17 in Chatham County, Georgia. The weather was cloudy, it was dark, and the traffic was heavy. All vehicles involved were traveling in a southerly direction in a line of traffic. Conditions caused the vehicles immediately ahead of the defendant Gordon's vehicle to slow down or stop. The defendant Gordon applied his vehicle's brakes hard and, while it was still moving, Gordon's vehicle was struck in the rear by the milk truck driven by the defendant David Carter and knocked into the rear of the vehicle immediately ahead, injuring the plaintiff. There was evidence that traffic was heavy, it was dark, defendant Leslie Gordon was traveling 50-60 miles per hour approximately one to one and one-half car lengths behind another vehicle, and that the Gordon vehicle was still moving when struck from the rear by the Carter milk truck.
The jury was unable to reach a verdict in the case and the trial court declared a mistrial. Subsequently, defendant Gordon made a motion for judgment notwithstanding the mistrial, which was sustained by the trial court. Thereafter, the trial court sustained the defendants Carters' (Liberty County residents) motion to dismiss based on the court's lack of jurisdiction.
1. A motion for a judgment notwithstanding a mistrial is analagous to a motion for a directed verdict or motion for judgment notwithstanding the verdict in that the same can be sustained only where "[t]here is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom shall demand a particular verdict." Code Ann. 81A-150 (a) (Ga. L. 1966, pp. 609, 656, as amended).
The uncontradicted evidence showed that the plaintiff was a fare-paying passenger in the defendant Gordon's vehicle. As such, Gordon was required to exercise ordinary care for the plaintiff's safety. Fountain v. Tidwell, 92 Ga. App. 199, 206 (88 SE2d 486); Reid v. Strickland, 115 Ga. App. 394 (2b) (154 SE2d 778); Wright v. Dilbeck, 122 Ga. App. 214, 225 (176 SE2d 715).
It is equally well settled that questions of negligence and proximate cause are for the jury to determine except in plain, palpable, and undisputed cases. Wakefield v. A. R. Winter Co., 121 Ga. App. 259 (174 SE2d 178); Bailey v. Wilson, 100 Ga. App. 405 (111 SE2d 106); Sheppard v. Martin, 100 Ga. App. 164 (110 SE2d 429); and Charles v. Raine, 99 Ga. App. 1 (107 SE2d 566).
As was stated in Kesler v. Kesler, 219 Ga. 592 (1) (134 SE2d 811): " 'It is error to direct a verdict, except where there is no conflict in the evidence introduced as to the material facts, and the evidence introduced together with all reasonable deductions or inferences therefrom demands a particular verdict.' [Cit.] A judge cannot direct a verdict because he thinks the strength or weight of the evidence is on one side, or because he might grant a new trial if a verdict should be returned which he thinks is contrary to a preponderance of the evidence. [Cit.] 'No principle is more firmly established in American jurisprudence than that the court cannot direct a verdict where there is any reasonable inference supported by evidence which would authorize a verdict to the contrary.' "
The trial court erred in sustaining the defendant Gordon's motion for judgment notwithstanding the mistrial.
2. Since the trial court improperly dismissed the case against the Long County resident defendant, it retains its jurisdiction over the Liberty County resident defendants, David L. Carter and Mrs. D. L. Carter, and erred in sustaining their motion to dismiss for lack of jurisdiction.
Jones, Kemp & Osteen, Charles M. Jones, John W. Underwood, for appellees.
Richard D. Phillips, for appellant.
SUBMITTED MAY 1, 1972 -- DECIDED MAY 23, 1972.
Friday May 22 14:41 EDT

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