Beasley v. Elder , 88 Ga. App. 419 ( 1953 )

88 Ga. App. 419 (1953) 76 S.E.2d 849

BEASLEY
v.
ELDER.

34674.

Court of Appeals of Georgia.

Decided June 16, 1953.

Kennedy & Sognier, for plaintiff in error.

Brannen, Clark & Hester, contra.

CARLISLE, J.

1. "In the absence of anything to the contrary, every adult is presumed to possess ordinary intelligence, judgment, and discretion. Hendrix v. Vale Royal Mfg. Co., 134 Ga. 712 (68 S.E. 483)." Edwards v. A. B. & C. R. Co., 63 Ga. App. 212, 215 (10 S.E.2d 449).

2. "One who knowingly and voluntarily takes a risk of injury to his person and property, the danger of which is so obvious that the act of taking such risk, in and of itself, amounts to a failure to exercise ordinary care and diligence for his own safety and that of his property, can not hold another liable for damages from injuries thus occasioned." Southern Railway Co. v. Hogan, 131 Ga. 157 (62 S.E. 64).

3. Under an application of the two foregoing rules of law to the allegations of the petition, when construed most strongly against the pleader, neither count of the petition stated a cause of action against the defendant. Every act of negligence charged against the defendant preexisted the plaintiff's entry behind the automobile to push it out of the highway, and every act of negligence charged against the defendant, with the exception that the emergency brakes were applied after the plaintiff left the automobile, was, presumably, within the plaintiff's knowledge. If the defendant's directing the plaintiff to go behind the automobile and push it out of the highway and the line of oncoming heavy traffic was so obviously dangerous as to constitute the defendant's action in doing so gross and wanton negligence, then the danger must necessarily have been equally obvious to the plaintiff; and as the defendant host had no power of compulsion over the plaintiff guest, even if we assume the gross negligence of the defendant, we must also assume the assumption of the risk by the plaintiff. Consequently, the trial court did not err in sustaining the demurrers to each count of the petition as finally amended and in dismissing the case.

Judgment affirmed. Gardner, P. J., and Townsend, J., concur.