Oast v. Mopper

• Decision Date: 17 October 1938
• Docket Number: 27080.
• Citation: 199 S.E. 249,58 Ga.App. 506
• Parties: OAST v. MOPPER.
• Court: Georgia Court of Appeals

199 S.E. 249

58 Ga.App. 506

OAST v. MOPPER.

No. 27080.

Court of Appeals of Georgia, Second Division

October 17, 1938

Syllabus by the Court.

1. Under the law and the evidence the jury was authorized to return a verdict in favor of the defendant.

2-5. The assignments of error on the charge of the court are without merit.

Error from City Court of Savannah; Alex R. MacDonell, Judge.

Suit by Fannye Oast against Dora Mopper to recover for injuries sustained when defendant's automobile operated by defendant's minor son left the roadway and ran into a tree. To review a judgment for the defendant, the plaintiff brings error.

Judgment affirmed.

Girard M. Cohen and John R. Fawcett, both of Savannah, for plaintiff in error.

Hester & Clark, of Savannah, for defendant in error.

SUTTON Judge.

1. The present suit was brought to recover damages for injuries sustained while the plaintiff, a young lady twenty years of age, was an invited guest in a "family car" of the defendant, which car was alleged to have been operated by the defendant's minor son in a grossly negligent manner about 1.30 o'clock in the morning while driving from Tybee to Savannah. The defendant filed an answer denying substantially the allegations of the petition. The jury returned a verdict in favor of the defendant. The plaintiff filed a motion for new trial on the general grounds and several special grounds which was overruled, and the exception is to that judgment.

Without setting out in detail the evidence introduced on the trial of the case, it may be said that the jury was authorized to find, under the view of the evidence most favorable to the plaintiff, the defendant submitting no evidence, that the driver of the automobile momentarily ran the car off of the roadway to the shoulder thereof and was thereupon requested by the plaintiff, sitting on the front seat with him, to keep his eye on the road and that he promised that he would do so; that in a few minutes thereafter the driver repeated the operation, and, on being asked by the plaintiff if he was sleepy, answered "I must be sleepy," and was again admonished by the plaintiff to "keep his eye on the road and watch;" that the plaintiff then rested her head on the back support of the front seat of the car, her hands over her eyes, and after talking with him several minutes, remained silent; that she made no offer to do the driving, as she had done in part in going to Tybee, she testifying that on the return trip she was not sleepy but was tired for certain stated reasons; that she made no effort to keep the driver awake or to be allowed to abandon the car and that she was not restrained in any way; that subsequently the car, while the defendant's son was still at the wheel, left the roadway and ran into a tree with the result that the plaintiff sustained certain described injuries.

It is well settled that the question of negligence and whether or not the plaintiff, by the exercise of ordinary care, might have avoided the consequences to herself of the negligence of another is for the determination of the jury except in plain and indisputable cases. Under the evidence here presented the jury was authorized to find that, even if the driver of the car was guilty of gross negligence, the plaintiff might, by the exercise of ordinary care, have avoided, as under Code § 105-603, provided, the consequences to herself of the negligence of the driver. Consequently, it was proper for the jury to return a verdict in favor of the defendant.

2. Error is assigned on the statement of the court to the jury in connection with a reference to the allegations of the petition and the answer of the defendant, that "Now, on the other hand, the defendant denies those things, and these represent substantially the contentions of the parties," it being contended that...