389 F2d 98 Harris v. Fryer

389 F.2d 98

Willie Mae HARRIS, Appellant,
v.
Lewis FRYER, Jr., Appellee.

No. 24430.

United States Court of Appeals Fifth Circuit.

Oct. 23, 1967, Rehearing Denied Dec. 18, 1967.

C. B. King, Albany, for appellant.

Lowrey S. Stone, Blakely, Ga., George D. Busbee, Albany, Ga., for appellee.

Before TUTTLE, GEWIN and AINSWORTH, Circuit Judges.

PER CURIAM:

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1

In this diversity case Willie Mae Harris (appellant) appeals from the judgment of the United States District Court for the Middle District of Georgia, entered pursuant to a jury verdict for the defendant. The appellant as plaintiff in the district court sought to recover damages for the alleged wrongful death of her son resulting from an automobile collision. The case is controlled by Georgia law.

2

The appellant contends that the court erred in failing to direct a verdict for the plaintiff on the issue of liability, and in failing to properly instruct the jury as to negligence, particularly with reference to negligence per se; the burden of proof; the law with respect to emergency and accident; contributory negligence; the duty to maintain a proper lookout, and to maintain proper control of a motor vehicle while in operation on a public highway. It is also contended that the verdict is not supported by competent evidence and that judgment for the defendant based on the verdict is erroneous.

3

The appellant did not move for a directed verdict, made no requests to the court for jury instructions and did not except or object to any jury instructions given by the court.

4

Our review of the record and particularly our analysis of the court's jury instructions fail to convince us that error was committed. The evidence disclosed factual issues to be decided by the jury and there is a reasonable basis in the evidence for the jury's verdict. In such circumstances it is not our function to weigh conflicting evidence, judge the credibility of witnesses or to substitute our judgment for that of the jury.

5

The judgment is affirmed.