Stukes v. Trowell, 44179

• Decision Date: 16 April 1969
• Docket Number: Nos. 1,2,3,No. 44179,44179,s. 1
• Citation: 168 S.E.2d 616,119 Ga.App. 651
• Parties: Howard STUKES v. Charlotte A. TROWELL
• Court: Georgia Court of Appeals

Page 616

168 S.E.2d 616

119 Ga.App. 651

Howard STUKES v. Charlotte A. TROWELL.

No. 44179.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

April 16, 1969.

Rehearing Denied May 13, 1969.

Certiorari Denied July 10, 1969.

Stukes brought suit against Miss Trowell alleging that he, a guest passenger in her car, was injured when she negligently drove it into a telephone pole. Plaintiff's deposition was taken, in which he testified that earlier in the evening he had two cans of beer and that he and Miss Trowell, together with another couple had gone to a drive-in movie, where they had split another can of beer, and after the movie on their return to his fraternity house he had purchased a fifth of bourbon whiskey approximately one-half of which he and Miss Trowell consumed before he escorted her to the apartment of her grandmother, where she obtained the key to the car to take him back to the fraternity house, and as she drove the car out of the driveway onto Clairmont Avenue she made a sweeping right turn, striking the telephone pole on the opposite side of the street.

Concerning her condition he testified: 'Q. Now, she was under the influence that evening, wasn't she, Mr. Stukes? A. Yes, sir. Q. You were too, to some extent, weren't you? A. Yes, sir. Q. And you knew that when you got in the car with her, didn't you? A. Yes, sir, but I believe I could have missed the pole.' He also testified that although he knew that Miss Trowell was somewhat under the influence from the drinking of the beer and whiskey, she appeared to be driving the car in a normal manner until he 'sensed' that they were leaving the roadway shortly before the car struck the pole. 'I was looking at her, and then I had the feeling that we weren't traveling in a straight line. I just had the sensation that we were going off the road, and we hit the post.' When she visited him at the hospital she said that she 'must have been drunk.'

Miss Trowell testified in her deposition that she went with Mr. Stukes and another couple to a movie in a car supplied by the other couple. There was an ice bucket with cans of beer in the car and they drank some of it on the way back. She thought she had one can and did not recall splitting a can with Stukes. After the fifth of bourbon was purchased on the way back they went to the basement of the fraternity house, where they had some drinks-she 'did not recall how many, but it must have been three or four.' The drinks were 'on the strong side.' As to whether it was less safe for her to drive after having that much to drink, she asserted, 'Yes, sir. I knew it was less safe.' As to why she drove the car, she testified that 'Howard wanted to borrow my car that night, and I didn't want him to use it because I thought he had had too much to drink.' She thought that he had had more to drink than she had, and that he was less capable of driving than she was.

Defendant's motion for summary judgment was granted and plaintiff appeals. Smith, Cohen, Ringel, Kohler, Martin & Lowe, Williston C. White, Atlanta, for appellant.

N. Forrest Montet, Atlanta, for appellee.

Syllabus Opinion by the Court

DEEN, Judge.

Summary judgment should be granted only in those cases where undisputable, plain and palpable facts exist on which reasonable minds could not differ as to the conclusion to be reached. Malcom v. Malcolm, 112 Ga.App. 151, 144 S.E.2d 188. Questions necessitating a decision as to whether a given state of facts shows that lack of ordinary care for one's own safety which will bar recovery (within which category are placed those situations amounting to the assumption of the risk involved) or only that comparative negligence which will reduce it are generally for the jury. 'In this State the doctrine of comparative negligence prevails and it is not all negligence which contributes to an injury that will necessarily prevent a recovery. * * * If a driver, from intoxication, is in a condition which renders him incapable of operating (the vehicle) with proper diligence and skill, and this is known or palpably apparent to one entering the car, this is a fact that may be proved for the consideration of the jury.' Powell v. Berry, 145 Ga. 696, 700, 89 S.E. 753, 755, L.R.A.1917A, 306. Follwing Powell, this court held in Sparks v. Porcher, 109 Ga.App. 334, 340, 136 S.E.2d 153, 157: It follows, therefore, that mere knowledge on the part of a passenger that the driver is under the influence of intoxicating beverages is not, as a matter of law, knowledge that such person is so much under the influence of intoxicants as not to be able to drive safely or with ordinary efficiency so as to make the passenger guilty of such lack of ordinary care for his own safety, or assumption of risk, as will bar a recovery against the driver for injuries occasioned by the driver's gross negligence.' These cases were not followed in Freeman v. Martin, 116 Ga.App. 237, 156 S.E.2d 511, which constituted a holding that where two people have spent the evening drinking together, and the driver at the time of taking over the wheel is intoxicated to the extent that soon thereafter he slumps over unconscious behind the steering wheel, it must be assumed that his incapacity to drive was clear and palpable to any person in the car. however, in the later case of Few v. Weekes, 118 Ga.App. 190(2), 162 S.E.2d 884, it was pointed out that if there were in the Freeman case anything contrary to the holding in Powell v. Berry, supra, it must yield to the holding of the Supreme Court. The same would apply to Davis v. Ferrell, 118 Ga.App. 690, 165 S.E.2d 313. There is no doubt that except in very extreme circumstances the question of assumption of risk by a guest passenger who rides with a driver known to him to have drunk some alcoholic beverage is a matter best left to the jury and not decided on summary judgment. Any other conclusion would be to hold as a matter of law that the negligence of an intoxicated driver must be rewarded by penalizing the injured passenger, regardless of the circumstances of the case.

The trial court erred in sustaining the defendant's motion for summary judgment.

Judgment reversed.

BELL, P.J., and HALL, PANNELL and QUILLIAN, JJ., concur.

FELTON, C.J., JORDAN, P.J., and EBERHARDT and WHITMAN, JJ., dissent.

EBERHARDT, Judge, dissenting.

While plaintiff testified that as the defendant's date he exercised control as to where the car was to be driven, we do not feel it necessary to bottom our decision upon this fact. Rather, we would place it squarely upon the proposition that when the plaintiff entered the car with the defendant at the wheel, knowing that she was under the influence of intoxicants to the extent shown by this evidence, he assumed the risk of whatever might happen as a result of her condition. Redding v. Morris, 105 Ga.App. 152, 156, 123 S.E.2d 714; Freeman v. Martin, 116 Ga.App. 237(2), 156 S.E.2d 511; Davis v. Ferrell, 118 Ga.App. 690, 165 S.E.2d 313.

It is well settled in our law that when one exposes himself to a known and obvious danger he assumes the risk, and cannot recover when he is injured, for he has failed to exercise ordinary care for his own safety. Southern R. Co. v. Hogan, 131 Ga. 157(1), 62 S.E. 64; Moore v. Southern Railway Co., 136 Ga. 872, 72 S.E. 403. '(T)he plaintiff, as a conscious and responsible human agent, must act as the situation and ordinary care requires. The great law of self-defense underlies the doctrine requiring a plaintiff to avoid danger. The word 'avoid' is very broad and comprehensive, and it would be impossible to define exactly what the plaintiff shall do in any particular case. He can 'avoid' danger by refraining from going into what he knows is an unsafe place. He can 'avoid' it by going away from that which he knows, or ought to know is dangerous.' Mansfield v. Richardson, 118 Ga. 250, 251, 45 S.E. 269, 270. (Emphasis supplied.) Plaintiff here could have avoided it simply by selecting another way of getting back to his fraternity house and refraining from getting into the car with a driver whom he knew to be intoxicated. He was in no emergency. There was no compulsion that he take the risk. It is common knowledge, supported by the cold statistics of the Department of Public Safety, that drivers who are under the influence of intoxicants lose much of their capability to drive, are prone to have serious accidents and that much of the carnage on our highways is directly traceable to this as a cause. For this very reason the General Assembly has made it a criminal offense to drive a vehicle on the public streets or highways while under the influence of intoxicants. Code Ann. § 68-1625. 'Granting that the negligence of the (defendant) was fully established, it is certainly true that (the plaintiff) and his companion were wanting in ordinary care and diligence. They both knowingly and deliberately took a risk the danger of which, to any person of common prudence, would have been plain and obvious.' City of Columbus v. Griggs, 113 Ga. 597, 598, 38 S.E. 953, 954. In that case it appeared that on a dark night the plaintiff and his companion had gone out in a buggy over a street where work was being performed and the buggy slid over an embankment.

We have not hesitated to hold that there is an assumption of risk when one, miscalculating the speed of the train, goes upon a railroad track in front of an approaching train thinking that he could get across ahead of it, Thomas v. Central of Ga. Ry. Co., 121 Ga. 38, 48 S.E. 683; or of a street car, shroeder v. Georgia Ry. & Elec. Co., 142 Ga. 173, 82 S.E. 553; or who runs along the side of a train at night, attempting to attract the attention of its operators and trips over an obstruction, Central of Ga. Ry. Co. v....