The trial judge erred in denying the motion for a new trial.
Tom Carter filed an action against Annie Leek Gilley Hayes to recover damages resulting from a collision of their automobiles. Annie Lee Gilley Hayes died while the case was pending and her administrator was by consent made a party defendant in her stead. The plaintiff's petition alleged in part:
"On October 16, 1953, while plaintiff was driving his 1953 Mercury automobile in a perfectly lawful manner, going south along the Metcalf and Monticello Road, in Thomas County, Georgia, and in the day time, said defendant, while traveling along said road behind plaintiff and going in the same direction, drove her 1950 Tudor Bellair Chevrolet Sedan, Motor No. HAA 576892, against and into the rear part of plaintiff's said automobile. Defendant's said automobile struck the rear bumper and the left rear fender of plaintiff's said automobile, and wrecked the entire left side of plaintiff's said automobile.
"As a result of said collision, plaintiff's said automobile was damaged in the sum of twelve hundred dollars, because immediately before said wreck plaintiff's said automobile was of the value of $3200, and immediately thereafter and as a result thereof it was of the value of not more than $2000.
"Plaintiff's said damages are caused by the negligence of said defendant, because she negligently drove her said automobile into and against plaintiff's automobile while the same was in plain view of her in the road traveling in the same direction and while she was traveling at a rate of speed in excess of sixty miles per hour and while plaintiff was traveling at a speed of about thirty miles per hour."
The defendant's answer denied the material allegations of the plaintiff's petition, and further alleged in substance: "At the time and place alleged by the plaintiff, both parties were traveling south on the Metcalf-Monticello Road, and both were going at about the same speed, he in front. The plaintiff then and there knew, or in the exercise of ordinary care could and would have known, that he was being followed by another automobile. While so traveling, the plaintiff stopped his car in the middle of the road without first giving any signal or other warning that he was about to do so. By the time defendant discovered the plaintiff was bringing his car to a stop, she was too close to him to bring her car to a complete stop before striking his car. In the emergency thus created by the plaintiff's said negligence, defendant swerved her car to the left and actually ran into the roadside ditch in an effort to avoid striking the plaintiff's car, but did not succeed in completely missing it. Defendant's car struck the left fender and left rear bumper of the plaintiff's car, injuring and damaging both cars. The direct and proximate cause of all the injuries and damage done to both of said cars was the plaintiff's negligence, (1) in that he stopped in the middle of the road immediately ahead of defendant's car without giving any signal or warning of his intention to do so, and (2) in that he stopped in the middle of the road without allowing this defendant the use of one-half of the road, which was necessary to enable her to pass him. By reason of said collision defendant's said automobile was injured and damaged in the sum of $400, its fair market value being $400 less immediately after the said collision than it was immediately before the said collision."
Upon the trial of the case, P. S. Dixon, a highway patrolman, testified in part: that the defendant's automobile was damaged "pretty" badly in the front; that she told him she had been drinking and showed evidence of being under the influence of liquor; that she said she had had a bottle of beer to drink at the time she was driving the automobile; that the plaintiff's automobile was damaged to the left of the center of rear; that there was nothing to indicate the rate of speed of either automobile; and that the plaintiff's automobile was approximately in the middle of the road.
J. C. Hicks testified in part: that he arrived at the scene of the collision a few minutes after it happened; that the defendant told him the plaintiff had gone to call the "law" but there was no need to because she would do the right thing; that the road was straight and wide enough for two automobiles to pass at the point of the collision; and that the defendant appeared to be drinking.
Luther Musselwhite testified in part: that defendant asked him to go on her bond; and that she told him she would prefer to settle with the plaintiff but she had turned the matter over to Mr. Whitehurst and she had to do what he said.
The plaintiff testified only as to the value of his automobile and the damage that it sustained in the collision.
The jury returned a verdict for the plaintiff. The defendant made a motion for a new trial which was denied and the case is here on exception to that ruling.
The trial judge erred in not granting the defendant's motion for a new trial. The evidence did not support the verdict. There was proof that the defendant was drinking and that she expressed a desire to settle with the plaintiff without indicating why she wished to make the settlement, but the record is entirely silent as to the cause of the collision between her automobile and that of plaintiff. It does not disclose whether the plaintiff's or the defendant's lack of care was the proximate cause of the collision or whether it was the result of pure accident. In Cardell v. Tennessee Electric Power Co., 79 Fed. 2d 934, 936, it was held: "All drivers of vehicles using the highways are held to the exercise of due care. A leading vehicle has no absolute legal position superior to that of one following. Each driver must exercise ordinary care in the situation in which he finds himself. The driver of the leading vehicle must exercise ordinary care not to stop, slow up, nor swerve from his course without adequate warning to the following vehicles of his intention so to do. The driver of the following vehicle, in his turn, must exercise ordinary care to avoid collision with vehicles, both in front and those behind him."
It follows that the mere fact that one vehicle is struck in its rear, while another is not struck, is not sufficient to fix liability on the driver of either vehicle.