Fountain v. Tidwell, No. 35547
| Court | United States Court of Appeals (Georgia) |
| Writing for the Court | GARDNER |
| Citation | 88 S.E.2d 486,92 Ga.App. 199 |
| Parties | R. C. FOUNTAIN v. H. A. TIDWELL et al |
| Decision Date | 31 May 1955 |
| Docket Number | No. 2,No. 35547 |
Page 486
v.
H. A. TIDWELL et al.
Rehearing Denied June 15, 1955.
Page 487
Syllabus by the Court.
1. Special grounds 1 and 3 are not considered for the reasons given in the body of the opinion.
2. Special ground 2 is abandoned.
3. Special ground 4 is without merit.
Page 488
4. Where an original petition is based on one degree of negligence, but the petition is amended by allegations of fact which shifts the degree of negligence, the court is required to charge that degree of neglilence only which is set forth by the petition as amended, and this in the instant case is ordinary negligence and not gross negligence.
[92 Ga.App. 200] 5. Where a share the expense ride in a motor vehicle is prearranged by a legally enforceable agreement, such a situation makes the passenger a passenger for hire and not a guest and requires ordinary care on the part of the operator of the motor vehicle.
R. C. Fountain (hereinafter called the plaintiff) brought a suit for damages seeking to recover $25,000 for personal injuries alleged to have been caused by the gross negligence of James B. Tharpe and H. A. Tidwell. The plaintiff amended the original petition by adding the following:
'1. The circumstances under which petitioner was in defendant's [Tidwell's] automobile were that both of them are employees at Warner Robins Air Force Base some forty miles from where they both live and petitioner and defendant entered into a plan whereby they would share the expenses of the gas and oil and upkeep of the car on the trips, with petitioner contributing $1.00 toward the expense of the round trip each day he rode with the defendant, and under the foregoing circumstances he was a guest of defendant in his automobile.
'2. The collision occurred at approximately the center of the road, and both vehicles were over the center line to their left when the collision occurred and petitioner shows that the verbal warning referred to in the petition was given by Melvin W. Wood, another occupant in the vehicle, the words used being 'look out'--this while the defendant was several hundred feet from the vehicle with which he collided.'
The circumstances under which the plaintiff was in the defendant's [Tidwell's] automobile were that both of them are employees at Warner Robins Air Force Base, some 40 miles from where they both live, and the plaintiff and defendant entered into a plan whereby they would share the expenses of the gas and oil and upkeep of the car on the trips, with petitioner contributing $1 toward the expense of the round trip each day he rode with the defendant, and under the foregoing circumstances he was a guest of defendant in his automobile. The case was tried upon the theory of the alleged breach by the defendants of the duty to exercise slight care to avoid injury to the plaintiff. The jury returned a verdict in the sum of $5,000 against the defendant Tharpe and in favor of the defendant Tidwell. The plaintiff [92 Ga.App. 201] filed a motion for a new trial on the general grounds, and, by amendment, on five special grounds. The trial court denied the motion, and error is assigned on that ruling.
The evidence showed partly that the Tidwell car contained, in addition to the driver H. A. Tidwell, Robert C. Fountain (the plaintiff), Lewis H. Watkins, Melvin W. Wood, and Ed K. Tidwell, all of whom testified at the trial. The testimony of the witnesses who were in the Tidwell car was without major contradiction, and showed that the Tidwell car was traveling south toward Warner Robins at approximately 6 a. m. at a speed estimated by witnesses in the Tidwell car at from 40 to 50 miles per hour. The Tidwell car was going around a curve in the road to its right, a curve measured by an engineer to be a two degree curve and characterized by him as a gradual curve; that no cars traveling in the same direction were in front of or immediately behind the Tidwell car, and the weather was clear, bright and sunny; that the station wagon of the defendant Tharpe was traveling north at a speed variously estimated at 35 to 55 miles per hour; that when the driver Tidwell first saw the station wagon coming toward him in the opposite direction, the Tidwell car was on its right side of the road and so was the station wagon which was about 300 yards away; that when the vehicles were about 100 or 150 yards apart, the
Page 489
station wagon began, for no apparent reason, to come over to Tidwell's side of the road; that as it did this, Wood hollered, 'Look out!' and Tidwell said that he was going to hold his side of the road; that it continued to come onto Tidwell's side of the road and all four wheels of the station wagon to come onto Tidwell's side; that when the station wagon driven by the defendant Tharpe was first completely on Tidwell's side, the vehicles were about 75 or 100 yards apart. The testimony showed also that Tidwell immediately blew his horn when the Tharpe station wagon began coming onto the wrong side of the road; that the horn was repeatedly and continuously blown. Aside from the horn-blowing, there was some conflict as to what action was taken by Tidwell. Watkins testified that Tidwell immediately pulled the car off the paved portion and onto the right shoulder. Ed K. Tidwell testified that the station wagon also seemed to be headed for the ditch on the right. Tidwell himself testified that he remained on the pavement, on his right side, [92 Ga.App. 202] and that he put on brakes, thereby reducing his speed to 15 or 20 miles per hour when the impact occurred. the plaintiff himself testified that he put on brakes to some extent. Wood thought that Tidwell reduced his speed only slightly.The testimony showed further that when the two vehicles were very close to each other, 25 feet or less apart, Tidwell jerked his car to the left; that the left front of Tidwell's car was slightly across the center line when the cars hit, and the right front of Tharpe's car was on his own side at the moment of impact. Tidwell did not recall cutting to the left immediately prior to the impact, but he thought that Tharpe cut back to his right when the vehicles were within 6 or 8 feet of each other. Tidwell testified that the shoulder of the road to his right was sandy with weeds at least waist high; that there was a...
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Durrett v. Farrar, Nos. 48223-48226
...105 Ga.App. 261, 124 S.E.2d 487, the passenger helped to listen and attempted to locate a rattle in the car. In Fountain v. Tidwell, 92 Ga.App. 199, at 204, 88 S.E.2d 486, the passenger Page 275 was to share the expense of the trip. In all of these cases it was held that the driver owed the......
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Wright v. Dilbeck, Nos. 45010
...an invitee by reason of a prior benefit. Perry v. Poss, 86 Ga.App. 169, 71 S.E.2d 283. See also in this connection Fountain v. Tidwell, 92 Ga.App. 199, 204, 88 S.E.2d 486; Taylor v. Austin, 92 Ga.App. 104, 88 S.E.2d 190. The appellant relies upon these cases and particularly upon Perry v. P......
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Wright v. Lail, No. 39136
...Western Union Tel. Co. v. Harris, 6 Ga.App. 260, 64 S.E. 1123; Blanchard v. Ogletree, 41 Ga.App. 4, 152 S.E. 116; Fountain v. Tidwell, 92 Ga.App. 199, 88 S.E.2d 486; United States Fidelity &c. Co. v. Sanders, 94 Ga.App. 904, 96 S.E.2d 531; Morris v. Cochran, 98 Ga.App. 786, 106 S.E.2d In th......
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Cahill v. Logue, No. 10311
...481, 161 P.2d 194, 161 A.L.R. 909 (1945); Kelly v. Simoutis, 90 N.H. 87, 4 A.2d 868 (1939). 6 See footnote 1. 7 Fountain v. Tidwell, 92 Ga.App. 199, 88 S.E.2d 486 8 See Miller v. Fairley, 141 Ohio St. 327, 48 N.E.2d 217 (1943); Hasbrook v. Wingate, 152 Ohio St. 50, 87 N.E.2d 87, 10 A.L.R.2d......
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Durrett v. Farrar, s. 48223-48226
...105 Ga.App. 261, 124 S.E.2d 487, the passenger helped to listen and attempted to locate a rattle in the car. In Fountain v. Tidwell, 92 Ga.App. 199, at 204, 88 S.E.2d 486, the passenger Page 275 was to share the expense of the trip. In all of these cases it was held that the driver owed the......
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Wright v. Dilbeck, s. 45010
...an invitee by reason of a prior benefit. Perry v. Poss, 86 Ga.App. 169, 71 S.E.2d 283. See also in this connection Fountain v. Tidwell, 92 Ga.App. 199, 204, 88 S.E.2d 486; Taylor v. Austin, 92 Ga.App. 104, 88 S.E.2d 190. The appellant relies upon these cases and particularly upon Perry v. P......
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Wright v. Lail, 39136
...Western Union Tel. Co. v. Harris, 6 Ga.App. 260, 64 S.E. 1123; Blanchard v. Ogletree, 41 Ga.App. 4, 152 S.E. 116; Fountain v. Tidwell, 92 Ga.App. 199, 88 S.E.2d 486; United States Fidelity &c. Co. v. Sanders, 94 Ga.App. 904, 96 S.E.2d 531; Morris v. Cochran, 98 Ga.App. 786, 106 S.E.2d In th......
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Cahill v. Logue, 10311
...481, 161 P.2d 194, 161 A.L.R. 909 (1945); Kelly v. Simoutis, 90 N.H. 87, 4 A.2d 868 (1939). 6 See footnote 1. 7 Fountain v. Tidwell, 92 Ga.App. 199, 88 S.E.2d 486 8 See Miller v. Fairley, 141 Ohio St. 327, 48 N.E.2d 217 (1943); Hasbrook v. Wingate, 152 Ohio St. 50, 87 N.E.2d 87, 10 A.L.R.2d......