Rowe v. Camp

• Decision Date: 26 September 1932
• Docket Number: No. 21864.,21864.
• Parties: ROWE. v. CAMP.
• Court: Georgia Court of Appeals

45 Ga.App. 794

165 S.E. 894

ROWE.

v.CAMP.

No. 21864.

Court of Appeals of Georgia, Division No. 2.

Sept. 26, 1932.

Syllabus by the Court.

1. Questions of negligence and diligence, even of gross negligence and slight diligence, are as a rule to be determined by a jury, and should not be settled by the court as a matter of law, except in plain and indisputable cases. Rosenhoff v. Schaul, 42 Ga. App. 776, 157 S. E. 215.

2. In this suit to recover damages alleged to have been sustained by the plaintiff while riding as a guest in the defendant's automobile, this court, upon a consideration of all the facts alleged, taken collectively and as a whole, cannot say as a matter of law that an inference of gross negligence on the part of the defendant and his wife, who was driving the automobile at his direction at the time of the injury, would not be authorized. Ætna Life Ins. Co. v. Carroll, 169 Ga. 333, 150 S. E. 208; Pickleseimer v. Duke, 41 Ga. App. 614, 154 S. E. 457; McDuffie v. Childs, 43 Ga. App. 37, 157 S. E. 900; Pitcher v. Curtis, 43 Ga. App. 622, 159 S. E. 783; West v. Rosenberg, 44 Ga. App. 211, 160 S. E. 808; Smith v. Hodges, 44 Ga. App. 318, 161 S. E. 284; Manning v. Simpson, 261 Mass. 494, 159 N. E. 440.

3. The petition stated a cause of action, and was not subject to any ground of the demurrer interposed.

Error from Superior Court, De Kalb County; John B. Hutcheson, Judge.

Action by Mrs. G. B. Camp against D. L. Rowe. Judgment for plaintiff, and defendant brings error.

Affirmed.

Mrs. Gordon B. Camp brought suit against D. L. Rowe to recover damages for personal injuries. The court overruled the defendant's general and special demurrer to the petition, and the defendant excepted.

This is another automobile guest case, and the question for decision is whether the allegations were sufficient to show gross negligence on the part of the defendant. The facts were as follows: On the morning of February 28, 1930, the defendant and his wife left Atlanta in a model A Ford sedan automobile for the purpose of going to Jacksonville, Florida, and the plaintiff, by invitation, accompanied them. The automobile was the property of the defendant, who drove it until he reached a point about 25 miles north of Valdosta, Ga., where he gave the wheel to his wife and took a position to her right on the front seat of the automobile and went to sleep. Mrs. Rowe was inexperienced in the operation of model A Ford automobiles, but had been accustomed to drive model T Fords, which facts were known to the defendant but unknown to the plaintiff. On model A Fords the accelerator or gas control is located within two or three inches of the brake, and is operated by the right foot, but there is no such accelerator near the brake or operated by the foot on model T Fords. "When said driver reached a point about ten miles north of Valdosta, Georgia, Lowndes county, the exact distance being unknown to petitioner, and while driving at a rapid and reckless rate of speed, towit, about 45 miles per hour, she ran off of the pavement on the right hand side of the road and then suddenly undertook to guide said automobile back into said road in a zig-zag cross-wise manner and reached at or just past the center thereof when defendant awoke, and at said instant said driver pressed her foot upon the accelerator instead of the brake on said automobile, and said driver suddenly, as the speed of said automobile was thus rapidly increased, guided said automobile into a deep embankment on the left hand side of said road and turned said automobile over on its right side, breaking the glass in the doors thereof, wrecking it and seriously" injuring the plaintiff. At the point where the automobile was wrecked the road...