CALDWELL v. SHELL

BANKE, Judge.

This is a tort action in which the trial judge directed a verdict for the defendant/appellee at the close of all the evidence. The appellants appeal the denial of their motion for new trial and enumerate as error the judge's entry of a directed verdict.

"`The trial judge has no right whatever to weigh the evidence, nor to decide any issue of fact. Before he can legally direct a verdict for the defendants, he must find from the evidence that there is no evidence of any kind supporting plaintiff's position. (Cits.)' Jenkins v. Gulf States Mtg. Co., 138 Ga. App. 835, 837 ( 227 S.E.2d 522)." Russell v. Goza, 143 Ga. App. 455 ( 238 S.E.2d 583) (1977).

In his order denying the appellants' motion for new trial, the trial judge found as a matter of fact that "Plaintiff was struck by defendant's vehicle when plaintiff suddenly ran his bicycle into defendant's path at a place where the woods came right up to the pavement and blocked the view of the dirt path traveled by plaintiff. [Emphasis supplied.]" Determination of whether the defendant's view was obstructed was material to this case.

Our review of the trial transcript shows that the injured child's child's mother testified that the dirt trail from which her child exited was in an "open" space filled with "just small weeds" and that the woods were farther back from the road. The appellee testified at one point that the woods came all the way to the pavement but at another time he testified that the tall trees were 12 to 15 feet from the pavement and that alongside the road there were only "bushes and small trees" but "enough to knock [sic.] the view." We find that this evidence created a disputed issue of fact and that it was error for the trial judge to remove this disputed issue of fact from the jury. Accordingly, the directed verdict for the defendant must be reversed. See Russell v. Goza, supra. Judgment reversed. Deen, P. J., and Smith, J., concur.