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Swanson v. Hall8/11/2005
RUFFIN, C. J., JOHNSON, P. J., BARNES, J.
Appellants Terry Lamar Swanson, Tommy Roberts Trucking, Inc., and Georgia Casualty & Surety Company appeal from a jury verdict and judgment against them in a personal injury and wrongful death action brought by Appellee Clarence Hall on behalf of himself and his late wife, Lois Hall. Mr. Hall was injured and Mrs. Hall died as the result of an automobile collision involving three vehicles: the Halls' van, a logging truck driven by Swanson and owned by Tommy Roberts Trucking, and a car driven by Mark Henderson. The jury returned a verdict for Hall (individually and as administrator of his wife's estate) and against Appellants. On appeal, the appellants contend that the judgment against them must be overturned because the trial court erred in charging the jury on racing and speeding when there was no evidence of either in the record, and in charging the jury on concurrent negligence separately from the other jury instructions. For reasons that follow, we disagree and affirm.
1. Appellants argue that the evidence presented at trial did not warrant the jury being charged on racing and speeding. We will not overturn a trial court's decision to give a particular jury charge "if there was any evidence presented at trial to support giving the charge." "In determining whether some evidence exists to support an instruction, an appellate court is not authorized either to weigh existing evidence or to judge witness credibility as these matters are within the province of the jury."
At trial, the evidence showed that Swanson was driving behind Henderson in the eastbound lane of traffic on a two lane road, Georgia Highway 140. They were part of a long line of vehicles traveling at a uniform speed, between 50 and 55 miles per hour. Swanson was driving a logging truck, although the truck was empty at the time of the incident.
The single lane of traffic in which Henderson and Swanson were traveling widened into two lanes to include a passing lane, which ran from the base to the top of a hill. Henderson testified that he entered the passing lane as soon as it became available, but did not cut through the gore area preceding the new lane. Swanson, however, had begun to pass Henderson's vehicle, picking up speed. An expert in accident reconstruction believed that Swanson entered the gore area to begin passing Henderson. Henderson testified that Swanson had to have entered the gore area and driven faster than Henderson for the collision to occur. Henderson's car and the truck Swanson was driving made contact, causing Henderson's car to spin into oncoming traffic, where it collided with the Halls' van.
(a) Appellants object to the following instruction on racing that was given to the jury:
o person shall drive any vehicle on a highway in this state in any race and no person shall participate in any such race. The Georgia Legislature has defined racing as the use of one or more vehicles in an attempt to outgain, outdistance, or prevent another vehicle from passing to arrive at a given destination ahead of another vehicle or vehicles.
Appellants agree that this is a correct statement of the law, but assert that it should not have been given because it was unsupported by the evidence.
Generally, whether a driver is engaged in racing is a question for the jury. Here, there is some evidence that Swanson was attempting to pass Henderson in an unsafe and illegal manner in order to outdistance him in the limited passing area. This evidence, however slight, is sufficient to justify a jury instruction on racing.
(b) Appellants also object to two jury instructions given on speeding:
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