Drake v. Driscoll, 17653.

• Decision Date: 20 July 1959
• Docket Number: No. 17653.,17653.
• Citation: 267 F.2d 274
• Parties: Malcolm Lamar DRAKE, Appellant, v. Joseph John DRISCOLL, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

267 F.2d 274 (1959)

Malcolm Lamar DRAKE, Appellant, v. Joseph John DRISCOLL, Appellee.

No. 17653.

United States Court of Appeals Fifth Circuit.

June 5, 1959.

Rehearing Denied July 20, 1959.

James M. Embry, Dunway, Embry & Shelfer, Atlanta, Ga., for appellant.

Casper Rich, Noah J. Stone, Atlanta, Ga., for appellee.

Before HUTCHESON, Chief Judge, and TUTTLE and WISDOM, Circuit Judges.

HUTCHESON, Chief Judge.

This is an appeal from a judgment on a verdict for damages for personal injuries sustained by plaintiff in a highway collision between two automobiles, in one of which plaintiff was a guest passenger.

The defendant, the driver of the other car, is here assigning in several forms that, in its charge¹ on plaintiff's duty to exercise care, the court in effect instructed the jury that plaintiff, as a guest, would not be called upon to exercise care unless and until something creating or evidencing danger, or requiring preventive action, came, or was brought, to his attention; whereas, as evidenced by defendant's requested and refused charges Nos. 10, 14 and 15, the law of Georgia² requires that both the plaintiff and the defendant be in the exercise of care at all times and that if by the exercise of ordinary care and diligence, the plaintiff in this case could have avoided the consequences to himself of defendant's negligence, he cannot recover.

Appellee, on his part, insisting that there was no evidence of negligence on the part of plaintiff and, therefore, no charge on that issue was justified,³ further urges upon us that the charge the court gave was not prejudicial but favorable to the defendant and, if justified at all, was in accordance with the law in Georgia and generally elsewhere. His main argument below, as appears from the colloquy between Court and plaintiff's counsel,⁴ was, and here is, that there was no evidence of contributory negligence on plaintiff's part justifying the submission in any form of that issue, and under the law in Georgia and elsewhere it was error to refuse defendant's requested charges.

There is no evidence on the part of anyone that plaintiff saw, or ought to have seen, the driver of the other car before the collision, and we think that for the court to have charged as requested would have put upon the plaintiff, as a guest, under the facts of this case, a greater duty and burden than he was compelled to bear under the law of Georgia or generally elsewhere.

Appellant, in support of his view, relying on the few lines quoted by him from Blashfield, supra, Sec. 2411, "Lookout", as correctly stating the duty of a passenger to keep a lookout, overlooks the fact that the general tenor of the text and of the cases it cites are contrary to his view. Stating that a person riding as guest or passenger in an automobile is not in any event held to exercise the same duty of care in respect of the maintenance of a lookout as is the driver, the text goes on to say:

"The duty of lookout is not, however, specific and absolute, but is, so far as the occupant of an automobile is concerned, only a component part of the broad duty of care * * *. He may reasonably rely on the driver and is not required under all circumstances to watch the road and the driver and hold himself in readiness to give directions to the driver or to keep a lookout for sudden or unexpected danger which may arise."

In the 1958 Cumulative Pocket Part to this section, at page 106 et seq., the later cases collected and quoted from hold almost uniformly that a guest, in absence of an obvious or known danger or knowledge superior to that of motorist as to location of traffic signs, is not bound as matter of law to be constantly on the lookout for stop signs in order to be in position to warn the driver to stop and observe them. Carman v. Huff, 32 Tenn. App. 687, 227 S.W.2d 780. In addition there is cited a Texas case, Davis v. Shafer, Tex.Civ.App., 222 S.W.2d 145, holding that proof that one was a guest in an automobile at time of collision does not of itself establish duty to keep a lookout. But there must be proof of circumstances indicating a need for guest to be on the alert in order to show his duty to keep a lookout and otherwise he has a right to rely on the diligence of driver in keeping a lookout. Many other cases from these and other states to the same effect are also cited.⁵

In the light of these authorities which represent the reasonable and prevailing view and one not at all in conflict, under the facts of this case, with the Georgia cases relied on by appellant, we think it clear that no reversible error attended the trial of the case and that the judgment must be

Affirmed.

1 "Now, I have referred several times to the negligence which the defendant charges against Jones. I wish to explain to you the relationship of these...