Sheppard v. Georgia Railroad & Banking Co. , 68 Ga. App. 697 ( 1942 )

The court erred in charging the jury as indicated in the opinion.

DECIDED DECEMBER 4, 1942. REHEARING DENIED DECEMBER 18, 1942. This is a suit by a mother against Georgia Railroad Banking Company to recover for the alleged negligent homicide of her son, who was killed as a result of a collision at a railroad crossing between the defendant's train and an automobile in which the plaintiff's son was a guest of the driver, riding with other companions, going on a swimming trip. The plaintiff's son was not the owner or the driver of the car which was being driven by another of the occupants.

The fact that the plaintiff's son and his companions had the same object in the trip, namely, going somewhere for the purpose of going in swimming, does not necessarily constitute them joint operators of the automobile. It is only when a guest, or other person in an automobile, who is not driving it and who is not the master or owner or in control of it, jointly participates in the automobile's operation by having the right to dictate to the driver the manner and means and method of the operation of the car, and this is negligently done, that this negligence of the driver can be imputed to the guest or other person riding therein. See Fuller v. Mills, 36 Ga. App. 357 (136 S.E. 807); Jones Mercantile Co. v. Copeland, 54 Ga. App. 647 (188 S.E. 586). It was therefore error for the court to charge the jury as follows: "The negligence of the driver of an automobile is not imputable to the person riding in the automobile as a guest, unless the guest has the right to control the operation of the automobile, or has an interest in the result of the trip;" and that "no person shall recover from a railroad company where the injury has been caused by his consent, and if you find that the plaintiff's son was with a group of others, all of whom had a unity of intent and purpose in their action so that each consented to the conduct of the other, and that they, including plaintiff's son, consented to, and by reason of such unity of conduct, concurred in, the action of the driver of the car as a member of the group, and you further find that the driver of the car was negligent in not exercising ordinary care in approaching the railroad crossing, and such negligence was equal to or greater than any negligence of which you may find the railroad was guilty, then the plaintiff can not recover in this case."

These instructions were equivalent to charging the jury that the plaintiff's son, merely because he was riding in the automobile with others, going on a trip for a common purpose, with the common object of going in swimming, whether or not he had any interest in the operation of the automobile itself or right to direct its operation, participated in and was guilty of the negligence of the driver of the automobile.

No reversible error appears in the grounds insisted on in the other exceptions. The errors of the court in charging the jury as above indicated were prejudicial to the plaintiff and favorable to the defendant. They require the grant of a new trial.

Judgment reversed. Felton, J., concurs. Sutton J., dissents.