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CURRY v. DURDEN et al.
TOWNSEND, Presiding Judge.
Action for damages. Emanuel Superior Court. Before Judge Humphrey.
1. "In order for the directing of a verdict to be error, it must appear that there was some evidence, together with all reasonable deductions and inferences from it, to support a verdict for the party against whom it was directed, and in determining this question the evidence must be construed in its light most favorable to the party against whom it was directed." Whitaker v. Paden, 78 Ga. App. 145 (1) (50 S. E. 2d 774).
Georgia R. & Bkg. Co., 108 Ga. 807 (1) (33 S. E. 996) along with other cases relied upon by the defendants in error, states the rule that circumstantial evidence from which the existence of a fact might be inferred cannot prevail over the positive and uncontradicted testimony of unimpeached witnesses that no such fact existed, provided the testimony is consistent with the circumstantial evidence relied on. If the plaintiff here was, immediately after impact, lying four feet in front of an automobile which had not backed up after the collision, it is scarcely conceivable that the plaintiff could have fallen against the side of the automobile, it being obvious from all of the evidence that the plaintiff did not arise and move her own position until she was placed on the sidewalk with the aid of bystanders. Neither this court on appeal nor the trial court in directing a verdict has any discretion to determine where the preponderance of evidence lies. There is in this case a conflict of testimony substantial enough to carry the case to a jury, and the special grounds of the motion for a new trial complaining of error in the court's direction of a verdict for the defendants was meritorious.
The trial court erred in overruling the motion for a new trial.
Sharpe & Sharpe, Malone Sharpe, contra.
Findley, Shea, Friedman, Gannam, Head & Buchsbaum, Michael J. Gannam, Spivey & Carlton, Milton A. Carlton, for plaintiff in error.
Friday May 22 23:24 EDT

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