Blackwell v. Southland Butane Gas Co., s. 36493

• Decision Date: 12 February 1957
• Docket Number: Nos. 36493,36494,No. 2,s. 36493,2
• Citation: 95 Ga.App. 113,97 S.E.2d 191
• Parties: F. H. BLACKWELL v. SOUTHLAND BUTANE GAS CO. SOUTHLAND BUTANE GAS CO. v. F. H. BLACKWELL
• Court: Georgia Court of Appeals

Page 191

97 S.E.2d 191

95 Ga.App. 113

F. H. BLACKWELL v. SOUTHLAND BUTANE GAS CO.

SOUTHLAND BUTANE GAS CO. v. F. H. BLACKWELL.

Nos. 36493, 36494.

Court of Appeals of Georgia, Division No. 2.

Feb. 12, 1957.

Syllabus by the Court.

A decision rendered upon a state of facts appearing in the record, in which the legal effect of those facts is declared, is, in all subsequent proceedings in the case, a final adjudication of the rights of the parties, from which the court cannot depart, nor the parties relieve themselves, so long as the facts themselves appear without material qualification.

Upon appeal to this court from a judgment finding in favor of the plaintiff father for the wrongful death of his son, this court affirmed the judgment, Southland Butane Gas Co. v. Blackwell,91 Ga.App. 277, 85 S.E.2d 542; but, upon certiorari from the Supreme Court, 211 Ga. 665, 88 S.E.2d 6, the judgment of this court was reversed, and the Supreme Court held in effect that the son, lying in a drunken condition upon the highway, was a trespasser and ruled: 'One who knowingly and voluntarily takes a risk of physical injury, the danger of which is so obvious that the act of taking such risk, in and of itself, amounts to a flilure to exercise ordinary care and diligence for his own safety, cannot hold another liable for damages resulting from a hurt thus occasioned, although the same may be in part attributable to the latter's negligence. Thus, if one voluntarily becomes drunk and consequently falls down, or lies down, in a state of insensibility on a public highway, so that he is injured by a passing motor vehicle, he cannot recover for injuries so received, even though there may have been contributory negligence on the part of the operator of the motor vehicle, where such negligence on the part of the operator did not amount to wilful and wanton negligence. The last clear chance or humanitarian doctrine is applicable only where the defendant knows of the plaintiff's perilous situation, and realizes, or has reason to realize, his helpless condition.' Following that decision of the Supreme Court, the plaintiff amended his petition by the addition of counts charging the defendant's driver with wilfulness and wantonness in causing the death of the plaintiff's son. At that stage, the case stood upon a count charging simple negligence and two counts charging wilfulness and wantonness in the death of the plaintiff's son. The trial court sustained general demurrers to each of these counts and dismissed the petition. On appeal, this court held that the trial court erred in sustaining the demurrers to the count based on simple negligence and to one of the counts based on wilfulness and wantonness and remanded the case for trial. Blackwell v. Southland Butane Gas Co., 94 Ga.App. 128, 93 S.E.2d 883. On the trial of the case, the trial court directed a verdict in favor of the defendant. The plaintiff moved for a new trial upon the usual general grounds and two special grounds assigning error upon the direction of the verdict. The trial court denied the motion and the plaintiff has appealed to this court for a review of that judgment. The defendant assigns error, by way of cross-bill of exceptions, upon certain...