Lassiter v. Poss
| Decision Date | 14 March 1952 |
| Docket Number | No. 2,No. 33704,33704,2 |
| Citation | 85 Ga.App. 785,70 S.E.2d 411 |
| Parties | LASSITER v. POSS et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. (a) Where reasonable minds might disagree as to whether the negligence charged constitutes lack of slight care as opposed to lack of ordinary care, this is a matter for the jury to determine.
(b) Where reasonable minds might disagree as to whether the alleged negligence of the plaintiff is of a character to preclude her recovery and to stand itself as the proximate cause of her injuries, this is a matter for the jury to determine.
2. Where a part of the testimony objected to on the ground that it is a conclusion is admissible, and the objection is not good as to the entire testimony, it is not error to overrule it. Testimony so admitted may be made the subject of any reasonable inference or argument on the part of counsel in his argument to the jury.
3. It was not error here to admit testimony as to the plaintiff's movements and exclamations caused by pain while sleeping at night, the testimony referring to observations of present suffering, and similar evidence on the subject having been admitted without objection.
4. Failure of the court to charge that the contentions as made in the pleadings are not evidence will not require a reversal where the court nowhere intimated that such pleadings could be used as evidence.
5. The charge of the court set out in the corresponding division of this opinion was not such as to mislead the jury to believe that a recovery would be warranted against the defendant named if his negligence did not constitute the proximate cause of the injuries received.
6. Since the plaintiff did not sue for special damages, lost earnings or impaired capacity to labor, the charge on the elements of damage to the effect that damages for pain and suffering were within the enlightened consciences of impartial jurors is without error.
7. The verdict was supported by the evidence, and the general grounds of the motion for a new trial are without merit.
Ann Elizabeth Poss, a minor, by her father as next friend filed suit in the Superior Court of Cobb County against Narvel L. Lassiter Sr. and Harry B. Johnson, alleging facts substantially as follows: that the defendant Lassiter's son, Narvel L. Lassiter Jr., a minor was on August 14, 1949, driving his father's automobile, which was used as a family-purpose car; that he requested the plaintiff and six other girls to go riding with him; that the Model-A Ford which he was driving was a two-passenger vehicle; that he placed three of the girls in the front seat with him, directed two others to sit on the right front fender, and directed the plaintiff and her sixteen-year-old sister to sit on the left front fender; that, in negotiating a hill while driving on a side road 22 feet in width, at a point where the visibility of oncoming vehicles from either direction is obscured (which fact was known to the drivers of both vehicles), the Ford driven by Lassiter Jr. met a pick-up truck driven by the defendant Johnson, both cars being at that time to the left of the center of the road, and the vehicles collided in such manner as to crush the plaintiff's leg between them and otherwise injure her. It is further alleged that both drivers knew the construction of this road at this point, but that the plaintiff did not know it, could not drive a car, was only fourteen years of age, knew nothing of the operation of motor vehicles, and had no control over either of the drivers. The petition alleges ordinary negligence as to Johnson in failing to use ordinary care to keep his truck under control, failing to bring it to a stop, failing to discover the approaching vehicle in time to stop, failing to steer the truck to the right of the center of the road, and failing to give warning of his approach. The defendant Lassiter is alleged to have been grossly negligent in permitting his son, known to him to be a young, inexperienced, and incompetent driver, to operate the vehicle and, through his son, in not using slight care to drive to the right of the center line, in driving with the front seat overcrowded with passengers, in driving up a blind hill on the left side, failing to turn to the right in time to avoid the collision, failing to use slight care to avoid the injuries to the plaintiff, in so steering the vehicle as to cause them to collide, failing to give warning of his approach, and failing to give the approaching car equal rights upon the highway. General and special demurrers were filed to the petition and overruled. The plaintiff then amended by rephrasing certain specifications of negligence against Lassiter, and the defendant renewed his demurrers previously filed, which demurrer was also overruled. Exceptions pendente lite were preserved to these rulings.
On the trial of the case a verdict was returned against the defendant Lassiter and in favor of the defendant Johnson. The evidence, construed in its light most favorable to substantiate this verdict, was in substance: that young Lassiter had either invited or been requested by the group of girls, of which the plaintiff was the youngest, to ride in the car; that the plaintiff had come along because otherwise she would have been left alone in the house, and had sat on the fender beside her sister after the others were arranged in the positions described in the petition; that the road on which the collision occurred was a dirt road, with room for two vehicles to pass, which described a circle over and around a hill; that the driver was talking and laughing with the girls, and that their position in the car and on the fenders hampered his vision; that he was driving to the left of the center of the road; that before the collision the plaintiff had protested that the road was rough; that as the car and truck suddenly met each other both applied their brakes and Johnson pulled his truck as far to the right side of the road as was possible; and that the Lassiter car was partly on the left of the center of the road; that the left front fenders of the vehicles collided, crushing the plaintiff's left leg and inflicting certain other injuries.
From the adverse verdict the defendant W. L. Lassiter Sr. filed a motion for a new trial on the general grounds which was later amended by adding seven special grounds.
H. G. Vandiviere, Ben F. Smith, Marietta, A. C. Latimer, Edward Savell, Atlanta, for plaintiffs in error.
J. G. Roberts, Sam J. Welsch, Marietta, for defendant in error.
CARLISLE, Judge (after stating the foregoing facts.)
1. The petition stated a cause of action against Lassiter, it appearing from the allegations that he collided with an approaching vehicle in the daylight while rounding a hill which he knew to be dangerous, and while driving his automobile on the left side of the road and allowing his attention to be distracted by the occupants of the car with his visibility impaired by the group of youngsters on the front fenders. Certain of the acts alleged are negligent per se; and whether or not they constitute gross negligence so as to permit recovery by a guest, rather than ordinary negligence, are primarily jury questions. See Barbre v. Scott, 75 Ga.App. 524, 43 S.E.2d 760; Arrington v. Trammell, 83 Ga.App. 107, 62 S.E.2d 451; Nash v. Reed, 81 Ga.App. 473(5), 59 S.E.2d 259. The special demurrers, directed at each of the allegations of negligence on the ground that they are conclusions of the pleaders, and that they do not constitute gross negligence, were also properly overruled for this reason, and the additional reason that the conclusions in such allegations are proper where, as here, the petition alleges facts upon which such conclusions are based.
(b) 'One who knowingly and voluntarily takes a risk of injury to his person and property, the danger of which...
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