Rosenhoff v. Schaul

Court of Appeals of Georgia

Rosenhoff v. Schaul

157 S.E. 215, 42 Ga. App. 776, 1931 Ga. App. LEXIS 138

CourtCourt of Appeals of Georgia

DecidedFebruary 18, 1931

Docket20756

StatusPublished

Cited by16 cases

This text of 157 S.E. 215 (Rosenhoff v. Schaul) 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.

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Rosenhoff v. Schaul, 157 S.E. 215, 42 Ga. App. 776, 1931 Ga. App. LEXIS 138 (Ga. Ct. App. 1931).

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Opinions

Bell, J.

(After stating the foregoing facts.) The only ground of special demurrer specifically referred to in the brief of counsel for the plaintiff in error was aimed at the allegation that the plaintiff requested permission to sit on the front seat with the defendant, who was driving the automobile, and that her request was refused. The demurrer questioned the relevancy of this averment to show gross negligence on the part of tlie defendant. We think the allegation was pertinent to illustrate how intently he was engaged in conversing with the person already seated with him, when he should have been giving more attention to the operation of the vehicle. There was no merit in any of the grounds of special demurrer.

The real and controlling question in the case was raised by the general demurrer, and is whether the petition' alleged such facts as would authorize the inference that the plaintiff’s injuries were caused by gross negligence on the part of the defendant. The petition proceeds upon the theory that the plaintiff was seated in the rear of the automobile driven by the defendant, in the front seat of which was another passenger with whom the defendant was constantly, if not persistently, engaged in conversation; that the defendant kept turning around from time to time to watch another automobile that was trailing him, all the time driving with one hand while holding in the other a cigar that he was smoking; that it was growing dark and was raining, and that the road was very slippery; that the plaintiff warned the defendant, about two minutes before the collision, to “turn around and look at his wheel;” and that becarrse of his inattention the defendant failed to see “an automobile coming towards him from tlie opposite direction until the said automobile was just about five feet away from him,” although at the rate of speed he was traveling, and with the “bright lights” on his car, he should have observed the roadway “at least 50 to 100 feet ahead of him, and if he had done that and had observed the other car from that distance, he could have blown his horn or stopped his car or both, and easily have avoided the collision.”

Questions of negligence and diligence, even of gross negligence [780]*780and slight diligence, usually'are matters to be determined by the jury, and this is not one of those plain and indisputable cases in •which' the court may solve the question as a matter of law. A cause of action was stated, and the general demurrer was properly overruled. See, in this connection, Epps v. Parrish, 26 Ga. App. 399 (106 S. E. 297); Harris v. Reid, 30 Ga. App. 187 (117 S. E. 256); Peavy v. Peavy, 36 Ga. App. 202 (136 S. E. 96); Hall v. Slaton, 38 Ga. App. 619 (6) (144 S. E. 827); s. c. 168 Ga. 710 (148 S. E. 741), 40 Ga. App. 288 (149 S. E. 306); Blanchard v. Ogletree, 41 Ga. App. 4 (2) (152 S. E. 116); Meddin v. Karsman, 41 Ga. App. 282 (152 S. E. 601); Luxenburg v. Aycock, 41 Ga. App. 722 (154 S. E. 460); Terlizzi v. Marsh, 258 Mass. 156 (154 N. E. 754).

Judgment affirmed.

Stephens, J., concurs. Jenldns, P. J., dissents.

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Bell, J.

(After stating the foregoing facts.) The only ground of special demurrer specifically referred to in the brief of counsel for the plaintiff in error was aimed at the allegation that the plaintiff requested permission to sit on the front seat with the defendant, who was driving the automobile, and that her request was refused. The demurrer questioned the relevancy of this averment to show gross negligence on the part of tlie defendant. We think the allegation was pertinent to illustrate how intently he was engaged in conversing with the person already seated with him, when he should have been giving more attention to the operation of the vehicle. There was no merit in any of the grounds of special demurrer.

The real and controlling question in the case was raised by the general demurrer, and is whether the petition' alleged such facts as would authorize the inference that the plaintiff’s injuries were caused by gross negligence on the part of the defendant. The petition proceeds upon the theory that the plaintiff was seated in the rear of the automobile driven by the defendant, in the front seat of which was another passenger with whom the defendant was constantly, if not persistently, engaged in conversation; that the defendant kept turning around from time to time to watch another automobile that was trailing him, all the time driving with one hand while holding in the other a cigar that he was smoking; that it was growing dark and was raining, and that the road was very slippery; that the plaintiff warned the defendant, about two minutes before the collision, to “turn around and look at his wheel;” and that becarrse of his inattention the defendant failed to see “an automobile coming towards him from tlie opposite direction until the said automobile was just about five feet away from him,” although at the rate of speed he was traveling, and with the “bright lights” on his car, he should have observed the roadway “at least 50 to 100 feet ahead of him, and if he had done that and had observed the other car from that distance, he could have blown his horn or stopped his car or both, and easily have avoided the collision.”

Questions of negligence and diligence, even of gross negligence [780]*780and slight diligence, usually'are matters to be determined by the jury, and this is not one of those plain and indisputable cases in •which' the court may solve the question as a matter of law. A cause of action was stated, and the general demurrer was properly overruled. See, in this connection, Epps v. Parrish, 26 Ga. App. 399 (106 S. E. 297); Harris v. Reid, 30 Ga. App. 187 (117 S. E. 256); Peavy v. Peavy, 36 Ga. App. 202 (136 S. E. 96); Hall v. Slaton, 38 Ga. App. 619 (6) (144 S. E. 827); s. c. 168 Ga. 710 (148 S. E. 741), 40 Ga. App. 288 (149 S. E. 306); Blanchard v. Ogletree, 41 Ga. App. 4 (2) (152 S. E. 116); Meddin v. Karsman, 41 Ga. App. 282 (152 S. E. 601); Luxenburg v. Aycock, 41 Ga. App. 722 (154 S. E. 460); Terlizzi v. Marsh, 258 Mass. 156 (154 N. E. 754).

Judgment affirmed.

Stephens, J., concurs. Jenldns, P. J., dissents.

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157 S.E. 215, 42 Ga. App. 776, 1931 Ga. App. LEXIS 138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rosenhoff-v-schaul-gactapp-1931.

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