Whitfield v. Wheeler , 76 Ga. App. 857 ( 1948 )

1. Although the evidence might authorize a different verdict, where there is enough to support the verdict found, the judgment of the trial court refusing a new trial on the general grounds will not be disturbed. See Code (Ann.) § 70-202, and annotations under catchwords, "Any evidence" and "Approval."

2. There are no errors of law shown in the excerpts from the court's charge, complained of in the amended motion for new trial.

DECIDED APRIL 23, 1948. Robert A. Whitfield brought a petition against C. W. Wheeler, in the Superior Court of Fulton County, alleging that he had been injured and damaged by the defendant in the sum of $5000. The petition alleges substantially: that on or about August 25, 1946, he was riding as a guest in an automobile belonging to the defendant and operated by the defendant, and that the plaintiff did not have any control or direction, or right to control or direct the operation, of said automobile; that Peachtree Road is a public thoroughfare and highway in Fulton County, running approximately north and south, and is a hard-surfaced, smoothly paved highway; that on August 25, 1946, at about 10:30 p. m. the plaintiff was sitting in the back seat of the said automobile operated by the defendant, proceeding north on Peachtree Road, and the defendant, without any warning operated the said automobile onto the west or left side of said Peachtree Road, in the direction in which he was traveling directly into the front end of an automobile proceeding in the opposite direction, operated by David Aldrich; that, when the said automobile in which he was riding and which was being operated by the defendant, ran directly into the front end of the automobile operated by Aldrich, it did so with great force and violence, seriously, severely, and permanently injuring the plaintiff; that Peachtree Road at the point of collision was approximately sixty feet wide; and that the center of the highway is marked by a white line, and the defendant was approximately eight or ten feet west of this white line down the center of said highway.

By amendment the plaintiff charged the defendant with having operated said automobile at the time and place with tires that were so worn and slick as to cause the said automobile to skid and slide on the wet pavement when the defendant applied his brakes on said car.

The defendant filed an answer to the petition, in which he denied all the material allegations of the petition, and further answering the defendant said that at the time mentioned in the petition he was driving his automobile in a careful manner and was not negligent in any manner in which he was operating his car. Defendant further said that, if the plaintiff was injured, he was not injured through any negligence on the part of this defendant.

The jury was authorized to find from the evidence facts as follows: The plaintiff was riding as a guest in the rear seat of the automobile driven by the defendant; and the collision occurred on August 25, 1946, at about 10:30 or 11 o'clock p. m. on Peachtree Road at a point near the Pig'n Whistle and on a curve. On this night it had been raining very hard, but just a few minutes before the collision the rain had slackened and it was misty, the pavement was wet, and the defendant was traveling north on Peachtree Road in Fulton County and was at a point near the Pig'n Whistle. There is an entrance and an exit to the Pig'n Whistle, which is located on the right side of Peachtree Road going north. At the time of this collision the defendant was operating his automobile at a speed of twenty-five to thirty miles per hour. He was on his right side of the highway. A car was pulling out from the Pig'n Whistle, and the defendant pulled his car to the left in order to give this car more room. The defendant observed the car approaching from the north on Peachtree Road, and as he pulled his car to the left, he unconsciously applied his brakes and his car began to skid, the pavement being wet, and skidded directly into the front end of the automobile traveling south and driven by David Aldrich; and as a result of this collision the plaintiff suffered a compound fracture of his left leg.

The verdict of the jury was in favor of the defendant. The plaintiff filed a motion for new trial on the general grounds, which was later amended by adding three special grounds complaining of certain excerpts from the court's charge. 1. This being a case wherein a guest is suing the host, it was incumbent upon the guest (plaintiff) to show by the evidence that the host (defendant) was guilty of gross negligence in the operation of his automobile. "One riding by invitation and gratuitously in another's automobile can not recover for injury caused by the other's negligence in driving, unless it amounted to gross negligence." Epps v. Parrish, 26 Ga. App. 399 (106 S.E. 297). Gross negligence as defined by this court is the want of slight care and diligence; such care as careless and inattentive persons would usually exercise under the circumstances; carelessness manifestly materially greater than want of common prudence, the entire absence of care. See Harris v. Reid,30 Ga. App. 187 (2) (117 S.E. 256).

There was ample evidence in this case to authorize the verdict, and the trial court did not err in overruling the motion for a new trial on the general grounds. Although the evidence might have authorized a different verdict, where there was enough to support the verdict found, the judgment of the trial court refusing a new trial on the general grounds will not be disturbed. See Code (Ann.) § 70-202, and annotations under catchwords, "Any Evidence" and "Approval."

2. The plaintiff assigns error on the following charge of the court: "Gross negligence, as applicable to the particular facts and circumstances, is defined as the want of slight care and diligence, such care as the careless or the inattentive person usually exercises under the same circumstances, as the want of that diligence which even careless men are accustomed to exercise, the entire absence of care." This is a correct statement of the law See Harris v. Reid, supra. This being a case wherein it was incumbent upon the plaintiff to allege and prove gross negligence, the controlling issue in the case was whether or not the defendant was guilty of such negligence; therefore it was the duty of the trial court to charge the jury the law upon the material issues of the case.

The plaintiff assigns error on the following charge: "The plaintiff could not recover if the defendant were merely guilty, if you so find, of some error in judgment in operating his car, or for some momentary inattention upon the part of the defendant." This is a correct statement of the law and was authorized by the evidence. We quote from Edwards v. Ford,69 Ga. App. 584 (26 S.E.2d 306), as follows: "Even if in the present case the jury would have been authorized to find that the driver of the car momentarily took her eyes from the road and leaned over to pick up the puppy, we think the facts would bring the case within the exception ruled in Harris v. Reid, supra, and Tucker v. Andrews, 51 Ga. App. 841 (181 S.E. 673), where the principle of law was announced that one is not guilty of gross negligence where the alleged momentary inattentiveness to the road was induced by the promptings of a natural and humane instinct."

The plaintiff assigns error upon the following charge of the court: "The driver of the automobile when confronted with sudden peril (not arising from any fault of his own) will not be held negligent when he exercises his right to take care of himself and thus avoid death or bodily injuries, provided he acts with such care as an ordinarily prudent person would exercise. The driver of the automobile when confronted with an emergency, if he finds he was so confronted, is not liable because he might not exercise good judgment under the circumstances, but is held liable in such emergency in ordinary care and diligence under the circumstances." This charge was authorized by the evidence and is in accordance with the rule laid down in Cone v. Davis,66 Ga. App. 229 (17 S.E.2d 849).

The judgment of the trial court overruling the motion for new trial as amended is without error.

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