McGowan v. Camp

75 S.E.2d 350, 87 Ga. App. 671, 1953 Ga. App. LEXIS 827

• Court: Court of Appeals of Georgia
• Decided: February 28, 1953
• Docket: 34174
• Status: Published

Opinions

Sutton, C. J.

One riding by invitation and gratuitously in another’s automobile cannot recover for injury caused by the other’s negligence in operating the automobile unless it amounts to gross negligence. Our Code defines gross negligence in these terms: “Slight diligence is that degree of care which every man of common sense, howsoever inattentive he may be, exercises under the same or similar circumstances . . the absence of such care is termed gross negligence.” Code, § 105-203. Ordinary negligence, gross negligence, and contributory negligence are questions of fact and not of law and are, as a.rule, to be determined by a jury.

It appears from the evidence that Mrs. McGowan, wife of the defendant, and Mrs. Camp, wife of the plaintiff, together with their children, were traveling in the defendant’s automobile from Monroe, Georgia, to Hinesville, Georgia, Mrs. Camp being a guest in the car. The children were restless and irritable, and were on the back seat part of the time and on the front seat part of the time. Mrs. Camp and Mrs. McGowan had, at different times, been correcting their children, and Mrs. McGowan had several times, while driving, looked back to where her son was on the back seat in correcting him. Before the accident happened, Mrs. Camp had taken her four-year-old son in her lap on the front seat, and Mrs. McGowan had placed her four-year-old son by her side on the front seat. Some disturbance was taking place between these two children when Mrs. McGowan, in endeavoring to correct her son, took her right hand off of the steering wheel and took her eyes off of the road and looked down by her side to see her son’s leg, so as to strike his leg with her hand in correcting him. The automobile was running from 45 to 50 miles per hour at that time, and it ran off of the right-hand side of the road, causing Mrs. McGowan to lose control of the car; and it then went back across the road and ran off of the road on the left-hand side, turned over three times and was wrecked, which resulted in serious injuries to Mrs. Camp. Mrs. McGowan testified that she did not think it could have been over two seconds that she took her eyes off of the road and looked down to strike her son’s leg. But, with the car running at 50 miles per hour, it would have traveled approximately 150 feet in two seconds. In other words, there was an automobile running at 50 miles per hour and traveling approximately 150 feet without the driver seeing where it was going, and during that time it ran out of the road and was wrecked as above stated, thereby causing the serious injuries to the plaintiff’s wife. It is not even questioned that this conduct of the defendant’s wife was responsible for the wreck and the injuries to the plaintiff’s wife. In these circumstances, could not a jury properly say that Mrs. McGowan was guilty of gross negligence? We think so.

This case is distinguishable from Harris v. Reid, 30 Ga. App. 187 (117 S. E. 256), where the defendant scraped another car in passing and in the emergency and excitement incident thereto glanced back at the other car and lost control of her own car; and from Tucker v. Andrews, 51 Ga. App. 841 (181 S. E. 673),» where a milk bottle was turned over by a child on the back seat of an automobile, and the defendant, in response to the exclamation of the child, obeyed a sudden impulse and looked back. In the present case, it appears that the children had been misbehaving for some time, and that the defendant deliberately took her hand off of the wheel and looked down at the leg of her son so as to spank him on the leg. This was an intentional and deliberate act on her part, as distinguished from the sudden and involuntary acts of the defendants in the two cases just referred to.

It was said in Jordan v. Lee, 51 Ga. App. 99 (3) (179 S. E. 739): “It has been held that where one driving an automobile is so inattentive as to look to the side and not keep a constant lookout ahead, when there is an object in his path which is clearly visible that he might run into, a jury would be authorized to find that he was guilty of gross negligence.” In Pitcher v. Curtis, 43 Ga. App. 622, 624 (159 S. E. 783), which was based on gross negligence, the petition alleged, among other things, that the driver “carelessly and negligently turned her head and eyes away from the direction in which she was traveling and looked to her left rear towards the filling station, and while in this careless and negligent inattention, suddenly and with great violence collided with another automobile which was proceeding slowly in the same direction in which the defendant’s car was traveling.” The petition in that case was dismissed on general demurrer, and this court .reversed that judgment and said: “The present case is distinguished from the case of Harris v. Reid, 30 Ga. App. 187 (117 S. E. 256), in which it appeared that in an emergency and under the sudden excitement attendant upon scraping another car, and in view of an admonition which was then uttered by the plaintiff, the defendant obeyed the promptings of a natural and humane instinct by momentarily glancing back at the other car, and in doing so lost control of her own vehicle and thus caused it to run off an embankment”; and also stated: “A slight difference in facts may work a very material difference in the legal result, and this is especially true in tort cases. When it is considered that the automobile in this case was running at a speed of 66 feet per second [45 miles per hour], the importance of looking constantly ahead and the seriousness of a failure to do so will immediately appear.”

It was a question for the jury to determine whether the defendant was guilty of gross negligence, and they did so by finding a verdict in favor of the plaintiff and against the defendant. Their verdict was approved by the trial judge, who, along with the jury, heard all of the evidence in the case. The evidence makes substantially the same case as was made by the petition, which was not demurred to. It is a well-settled principle of law that, after a verdict is found, the evidence is construed most favorably to the prevailing party, for every presumption and inference is in favor of the verdict. This is not one of those plain and indisputable cases where the court should attempt to solve the question as a matter of law.

This case was considered by the court as a whole.

Judgment affirmed.

Gardner, P. J., Townsend and Carlisle, JJ., concur. Felton and Worrill, JJ., dissent.