Beasley v. Elder

Court of Appeals of Georgia

Beasley v. Elder

76 S.E.2d 849, 88 Ga. App. 419, 1953 Ga. App. LEXIS 1100

CourtCourt of Appeals of Georgia

DecidedJune 16, 1953

Docket34674

StatusPublished

Cited by18 cases

This text of 76 S.E.2d 849 (Beasley v. Elder) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Beasley v. Elder, 76 S.E.2d 849, 88 Ga. App. 419, 1953 Ga. App. LEXIS 1100 (Ga. Ct. App. 1953).

Pincite

Opinion

*419 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.

*421 The allegations of Count 2 of the petition were identical with those of Count 1, save that to paragraph 9 the following sub-paragraph was added: (a) in attempting to push the automobile in answer to the shouted instructions of the defendant, the plaintiff was rendering a benefit which was directly received by the defendant; and save that to paragraph 13 the following sub-paragraphs were added: (i) in permitting the lights on the automobile to go out and in stopping the car on the heavily traveled highway instead of driving it out of the line of traffic; (j) in putting on the emergency brakes and stopping his car on the highway in line of oncoming heavy traffic when the lights went out on his car; (k) in requesting everyone in the car, including the plaintiff, to get out and get behind the car and push it off the road when he stopped his car on the highway with the motor running, with the emergency brakes on, and with no lights on the car; (1) in failing to inform the plaintiff of the danger in getting behind the car and pushing it on the heavily traveled highway, and in not providing the proper lights as aforesaid; (m) in operating the automobile in a defective condition when the lights were likely to go out at any time, which condition was known to him; (n) in failing to drive the car off the highway under its own power.

The original petition was subjected to certain general and *422 special demurrers, which were sustained by the court on March 11, 1953, and the court allowed the plaintiff until April 1, 1953, within which to amend. On March 19, 1952, the plaintiff amended his petition, and the allegations which have been summarized above constitute those of the petition following the amendment. On March 21, 1953, the defendant redemurred, both generally and specially, and on April 3, 1953, the trial court sustained all the grounds of this latter demurrer and dismissed the case. The plaintiff has appealed to this court from that judgment.

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*419 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.

*421 The allegations of Count 2 of the petition were identical with those of Count 1, save that to paragraph 9 the following sub-paragraph was added: (a) in attempting to push the automobile in answer to the shouted instructions of the defendant, the plaintiff was rendering a benefit which was directly received by the defendant; and save that to paragraph 13 the following sub-paragraphs were added: (i) in permitting the lights on the automobile to go out and in stopping the car on the heavily traveled highway instead of driving it out of the line of traffic; (j) in putting on the emergency brakes and stopping his car on the highway in line of oncoming heavy traffic when the lights went out on his car; (k) in requesting everyone in the car, including the plaintiff, to get out and get behind the car and push it off the road when he stopped his car on the highway with the motor running, with the emergency brakes on, and with no lights on the car; (1) in failing to inform the plaintiff of the danger in getting behind the car and pushing it on the heavily traveled highway, and in not providing the proper lights as aforesaid; (m) in operating the automobile in a defective condition when the lights were likely to go out at any time, which condition was known to him; (n) in failing to drive the car off the highway under its own power.

The original petition was subjected to certain general and *422 special demurrers, which were sustained by the court on March 11, 1953, and the court allowed the plaintiff until April 1, 1953, within which to amend. On March 19, 1952, the plaintiff amended his petition, and the allegations which have been summarized above constitute those of the petition following the amendment. On March 21, 1953, the defendant redemurred, both generally and specially, and on April 3, 1953, the trial court sustained all the grounds of this latter demurrer and dismissed the case. The plaintiff has appealed to this court from that judgment.

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76 S.E.2d 849, 88 Ga. App. 419, 1953 Ga. App. LEXIS 1100, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beasley-v-elder-gactapp-1953.

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