Syllabus by the Court.
Petition
against automobile driver for injuries to invited guest
riding in automobile sufficiently alleged driver was grossly
negligent.
The
petition alleged that the plaintiff's injuries were
caused by the gross negligence of the defendant, with whom
and in whose automobile the plaintiff was riding as an
invited guest, and this court cannot hold as a matter of law
that the specific facts pleaded would be insufficient to
establish the negligence alleged. The court did not err in
overruling the general and special demurrers to the petition.
Error
from City Court of Savannah; John Rourke, Jr., Judge.
Suit by
Mrs. Augusta Schaul against A. S. Rosenhoff. Judgment for
plaintiff, and defendant brings error.
Affirmed.
JENKINS
P.J., dissenting.
Petition
against automobile driver for injuries to invited guest
riding in automobile sufficiently alleged driver was grossly
negligent.
Mrs
Schaul, while riding as an invited guest in the automobile of
Rosenhoff, was injured
as the result of a collision between this car and another
vehicle. She sued Rosenhoff for damages, and the case is here
upon exceptions by Rosenhoff to the overruling of his
demurrers to the petition.
The
plaintiff alleged that she was seated in the rear of the
automobile, which was a five-passenger vehicle, and that the
defendant was driving it in a grossly negligent manner, as
follows: "That he was constantly conversing with Mr
Meyer Tenenbaum, who was sitting on his right in said
automobile, and that he turned his eyes and attention to the
right towards Mr. Tenenbaum while so conversing; that he kept
constantly turning around and looking behind him without even
slowing down, in order to find and watch the automobile of
Mr. Morris Heyman, which was trailing him; that he was
constantly driving with one hand on his wheel and smoking and
holding a cigar with the other hand." The petition
contained the following additional allegations: "That
your petitioner had asked said defendant to be permitted to
sit in front with him, as there was more room in front, but
that both the said Mr. Tenenbaum and the said defendant had
replied that they had a great deal to talk about and that
they would rather sit next to each other; that just before
the occurrence which is hereinafter described, said defendant
was looking back so constantly without slowing down that your
petitioner finally told him to turn around and look at his
wheel, as your petitioner was in fear of a collision
resulting from his grossly careless driving; that it had been
raining and the road was therefore very slippery and that it
was growing dark and it was therefore evident to every one
that the driver of an automobile, even going at an ordinary
rate of speed as said defendant was driving, would have to
drive very carefully and keep a sharp lookout ahead of him,
but that instead of this the said defendant carelessly and in
a grossly negligent manner drove in reckless disregard of
what was in front of him on the road, to such an extent that
he did not see an automobile coming towards him from the
opposite direction until the said automobile was just about
five feet away from him; that said defendant had his bright
lights on, and that if he had taken any care at all, even
though he had driven inattentively, he should have observed
the roadway at least 50 to 100 feet ahead of him, and if he
had done that and had observed the other car from that
distance, he could have blown his horn or stopped his car or
both, and easily have avoided the collision which is
hereinafter described; *** that the allegation *** with
reference to said defendant looking behind him, and to the
conversation between plaintiff and defendant when she told
him to look at his wheel, both occurred shortly, about two
minutes, before the collision described in said petition, and
that as a result of said defendant looking back and turning
his attention to the guest on his right, smoking a cigar and
otherwise behaving as described in said petition, said
defendant was not able at the time of the collision to keep
such a lookout and to have such control over his automobile
as to see the approaching Ford car in time and to avoid the
said collision; that plaintiff requested permission of
defendant to sit in the front with him sometime before the
collision and while she was driving with him, but he did not
permit her to sit in front with him, because he and Mr.
Tenenbaum, who sat in the front with him, both preferred that
they sit together, because they had a great deal to say to
each other at that time; that the allegations *** with
reference to the driving of said defendant, together with the
fact that he did not see the Ford automobile, which car
collided with his, until it was approximately five feet from
him, although defendant's car had bright lights turned on
at that time, indicates that said defendant was taking no
care whatsoever to regard the safety of persons or vehicles
in front of him; that the Ford automobile with which
defendant's car collided was going in the opposite
direction from that of defendant's car, and as they
approached each other, each at a fair rate of speed,
defendant's car was on its right-hand side of the road
and the Ford was about the middle of the road, and had
defendant kept a proper lookout or observed the road at all,
he could and should have seen that a collision was imminent,
and it would then have been his duty to blow his horn and
stop or move out of the way of said Ford car, so as to avoid
the collision. That plaintiff does not know whether or not
said Ford car had lights on it."
"That
at the time and place and in the manner hereinbefore
described said defendant was driving said automobile with
your petitioner sitting in the rear seat thereof, when
suddenly that said automobile of said defendant collided with
a Ford automobile driven by a colored man whose name is
unknown to your petitioner; that the impact was terrific and
said defendant's automobile turned over several times and
threw your petitioner violently to the ground and rendered
her unconscious and injured and damaged her as hereinafter
described."
"That
the injuries and damages of your petitioner as hereinbefore
and hereinafter described are due to the gross negligence of
said defendant in the following particulars: (a) In that he
failed to keep not only a proper lookout, but even such a
watch of the road in front of him as any ordinary person, no
matter how inattentive he might be, would naturally keep, in
that, although it was growing dark and the road was slippery
he kept only one hand on his wheel and used the other hand
for the purpose of smoking
in that he talked constantly to Mr. Tenenbaum on his right
and turned his attention and his gaze towards his right, and
in that he kept constantly looking back without stopping or
even slowing down his speed and in that generally he showed
such disregard for whatever vehicles or persons that might be
on the road in front of him that he did not actually see the
Ford automobile coming towards him until it was about five
feet away from his car; that although he had his bright
lights on his car; (b) that under the circumstances before
outlined, said defendant kept looking back and watching an
automobile to the rear of him without stopping or even
slowing down; (c) that under the circumstances before
outlined, said defendant kept talking with Mr. Tenenbaum who
was sitting on his right and kept gazing to the right; (d)
that under the circumstances...
