dissenting.
I cannot agree with the majority that the trial court correctly directed a verdict in favor of the defendant in this rear-end collision case. At the heart of the majority’s conclusion that this is one of the rare cases wherein the submission to the jury of the issues of negligence and contributory negligence is not warranted, is the majority’s statement that “the record sustains appellee’s contention that there was offered at trial no competent evidence of fault on his part.” My review of that same record compels me to reach the opposite conclusion. I do agree with the majority that “the only evidence presented on this issue was the testimony of appellant Smith herself, who admittedly did not see appellee’s oncoming car until after the collision had occurred ...” However, this true statement does not necessarily support the majority’s following analysis that the appellee “therefore was not competent to testify as to appellee’s speed, position on the roadway, or manner of operating *739his vehicle”. While there was no direct testimony in this regard, the appellant did testify that the taxi cab, in which she was a passenger, pulled out onto the roadway and that the roadway was clear and unobstructed at that time. Appellant also stated that the taxi cab attained a speed of 35-40 miles per hour, was not slowing down, and so proceeded down the highway for a quarter of a mile when suddenly and without warning, “it hit so hard I hit the front seat of the cab first, then I came back and I hit the back of the cab.” The appellant furthur testified that after she got into the ambulance with defendant driver, she smelled a strong odor of alcohol coming from the defendant.
“The evidence here was in conflict as to how the collision occurred other than that it was a rear-end collision, after the [taxi cab] drove into the traffic on the [roadway...;] and in particular as to the amount of traffic on the [road], as to the movement or speed of the various vehicles, and as to whether or not the [taxi cab driver] or the defendant exercised ordinary care and diligence — the [taxi cab driver] in entering traffic ahead of the [defendant’s car] which then collided with the vehicle [containing] plaintiff; and the defendant driver in controlling his vehicle to avoid the collision. Clearly, as was stated in Atlanta Coca-Cola Bottling Co. v. Jones, 236 Ga. 448, 451 (224 SE2d 25) (although the verdict was there directed for the plaintiff as shown in Atlanta Coca-Cola Bottling Co. v. Jones, 135 Ga. App. 362 (218 SE2d 36)), ‘[i]n rear-end collision cases the liability, degree of liability, or lack of liability on the part of any involved driver depends upon a factual resolution of the issues of diligence, negligence, and proximate cause ... [and] ... these issues should be resolved,... by the jury and not by trial and appellate judges.’ The trial court erred in directing the verdict against the plaintiff in favor of the defendants.” Jenkins v. Lampkin, 145 Ga. App. 746, 747 (244 SE2d 895) (1978). It is my opinion from a review of the instant record that, as in Jenkins, the trial court in this case incorrectly withdrew the controlling issues from consideration by the jury, and that the direction of a verdict for appellee was error. Accordingly, I must respectfully dissent.
I am authorized to state that Chief Judge Shulman, Presiding Judge Quillian and Presiding Judge McMurray join in this dissent.