retail purchase price of car is prima facie but not conclusive but would be with evidence of condition
How later courts described this case
- retail purchase price of car is prima facie but not conclusive but would be with evidence of condition
Written by the judges who cited it.
The opinion
Felton, C. J.,
dissenting. I think the court erred in denying the motion for a judgment notwithstanding the verdict. The testimony of the plaintiff was vague, uncertain and contradictory, *462 and under the rule in such cases, construing this testimony against him, a verdict against him was demanded. “ 'The testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him when it is self-contradictory, vague, or equivocal. W. & A. R. Co. v. Evans, 96 Ga. 481 [ 23 S. E. 494 ]; Freyermuth v. R. Co., 107 Ga. 32 [ 32 S. E. 668]; Ray v. Green, 113 Ga. 920 [ 39 S. E. 470 ]; Farmer v. Davenport, 118 Ga. 289 [ 45 S. E. 244 ], And he is not entitled to a finding in his favor if that version of his testimony the most unfavorable to him shows that the verdict should be against him. Southern Bank v. Goette, 108 Ga. 796 [ 33 S. E. 974 ].’ Southern Railway Co. v. Hobbs, 121 Ga. 428 ( 49 S. E. 294 ).” Davis v. Abridge, 199 Ga. 867, 868 (2) ( 36 S. E. 2d 102 ). Under our ruling in the Marshall case it was incumbent on the plaintiff to prove that he was unable to see the boxcars blocking the crossing for 500 feet or less because of the impairment of his vision by smoke or fog in the atmosphere. He testified at one time that he turned on his bright lights and ran a considerable distance without being able to see the boxcars until he was within 100 to 150 feet of the crossing. At another time he testified that immediately upon turning on his bright lights he saw some object. Taking the last statement as true the evidence is not sufficient to show that the plaintiff would not have been able to see the object if he had turned on his bright lights at a distance of 500 feet or less from the crossing. The plaintiff testified in part: “Q. When did you turn your lights on bright? A. My car, the windshield of my car was about even with the front of the other car. Q. When did you first see an obstruction across the road? A. When I started to pull back on the road—I couldn’t tell whether it was a continuation of the highway or not, but it looked as though there was some obstruction of the highway. . . Q. Sergeant Clements, point out on that rough sketch your position when you became aware that something was on the crossing? A. I was somewhere in this vicinity right here, which would throw me approximately a hundred and fifty feet from the crossing, sir. . . Q. What point did you reach on this road before you could see the boxcar, Sergeant Clements? A. Oh, anywhere between a hundred and a hundred and fifty feet, approximately, sir. . .• Q. How far did you say you were from the crossing when you *463 observed the train, Sergeant Clements? A. Approximately a hundred to a hundred and fifty feet, sir. . . Q. So you saw the train immediately upon putting on your bright lights, Sergeant Clements? A. I saw some object.”
The loose gravel on or near the crossing was not chargeable against the defendant as negligence. The purpose of Code §§ 94-503 and 94-504 is to require the maintenance of crossings and approaches thereto in such a condition as is “necessary for a traveler to get on and off the crossing safely and conveniently.” Central of Ga. Ry. Co. v. Dumas, 44 Ga. App. 152, 154 (8) ( 160 S. E. 814 ); Pollard v. Boatwright, 57 Ga. App. 565, 573 (5) ( 196 S. E. 215 ); Atlantic Coast Line R. Co. v. Spearman, 42 Ga. App. 536 (1) ( 156 S. E. 824 ). The presence of loose gravel on the approaches to the crossing did not render it unsafe and inconvenient for a traveler to get on and off the crossing.