Taylor v. Morgan

• Decision Date: 12 September 1936
• Docket Number: 25467.
• Citation: 188 S.E. 44,54 Ga.App. 426
• Parties: TAYLOR v. MORGAN.
• Court: Georgia Court of Appeals

188 S.E. 44

54 Ga.App. 426

TAYLOR v. MORGAN.

No. 25467.

Court of Appeals of Georgia, First Division

September 12, 1936

Rehearing Denied Oct. 29, 1936.

Syllabus by the Court.

1. One riding on the running board of an automobile is not necessarily negligent, although he may be found negligent if there was no reason for his assuming such a position. In such a case the question of negligence is ordinarily for the determination of the jury.

2. A person who voluntarily rides on the left-side running board of an automobile on a dusty road, in such a position that his body protrudes beyond the car, and by reason of such fact he is struck by a passing car which itself may be violating the rules of the road, is guilty of such a lack of ordinary care to avoid the consequences of the negligence of drivers of other vehicles as will preclude a recovery by him of injuries received in such a manner. "A person who voluntarily assumes a position of imminent danger when there is at hand and accessible to him a place of safety, and by reason of having assumed such dangerous position he is injured, cannot recover against another who is also negligent. Such conduct amounts to the lack of ordinary care."

3. Under the uncontradicted facts of this case, it is plain and indisputable that by the use of ordinary care the deceased could have avoided the results of the defendant's negligence. The court erred in overruling the motion for new trial.

Error from Superior Court, Chattooga County; J. H. Hawkins, Judge.

Action by W. M. Morgan against Kathleen Taylor. To review a judgment for plaintiff, defendant brings error.

Reversed.

Wesley Shropshire, of Summerville, and W. B. Mebane, of Rome, for plaintiff in error.

John D. & E. S. Taylor, of Summerville, and Wright & Covington, of Rome, for defendant in error.

GUERRY Judge.

This was an action by a wife for the homicide of her husband by alleged negligent operation of an automobile. The only negligence set up by the pleadings and the evidence was the act of the defendant driving her car over the center line of the road and striking the deceased.

The evidence discloses that Morgan, the plaintiff's husband on a Sunday afternoon was in a De Soto coupé being driven by James Weems. Weems and three other men were on the seat, and Morgan was standing on the running board of the car on the left side. Weems and the other occupants urged him to ride inside the car, and insisted that he do so, and that they could make room for him; but he refused. He and the other occupants were guests of Weems. The road on which they were riding extended from Trion, Ga., to Chattanooga, Tenn., and was not paved at the time. The occupants of Weems' car who were witnesses for the plaintiff, testified that the road was quite dusty at the time of the accident, by reason of the fact that a car had just passed them going in the same direction they were traveling, towards Chattanooga. The defendant and the occupants of her car agreed on this fact. The evidence as to the speed of the car operated by Weems was sharply conflicting. He and the occupants fixed it at 30 to 35 miles per hour. Witnesses for the defendant placed it at 50 to 60 miles per hour. The speed of the defendant's car was variously estimated at from 10 to 30 miles per hour. Weems testified: "Mr. Morgan was holding on the side of the car, and he put his head inside to get out of the dust. * * * I couldn't see where his body was outside the car. I was trying to look straight ahead, as straight as possible. I think his body would have been out a very little anyway." Another car going towards Chattanooga had just passed. Weems testified: "The biggest dust was when this car passed. * * * Just as a car passed, Mr. Morgan kinder ducked his head under the top to get out of the dust. His body was protruding, and bent back away from the car some. His ducking his head in the car might have interfered some with my seeing ahead of me, but not when I could see a car. I could have seen a car, but it did knock some view off. His head was over me in front of me some little bit. I don't remember that he was talking to me something was said about the dust, and he put his head in at the top. It was an old model car, and it had a high windshield. I never saw this car, and the first thing I knew about it was the jar. It first struck the man, because my front hub-cap was not touched. * * * The road was plenty dusty. A car * * * drove past us * * * going in same direction we were, and they made dust, and I couldn't see any car at all, and I felt a jar. The other car had just passed me. They blew for the road, and I pulled over to the right, and he passed on the side Morgan was standing on. That car did not strike Morgan; it had gone up the road. I did not see this other car [defendant's car] at all. I felt a jar; it wasn't a heavy jar, and Morgan was gone then. At the time I felt the jar on my car I was on the right-hand side of the road. * * * It was not so much of a jar as a person might think. The jar seemed like it just kinder rolled him between the cars and there was flesh on Miss Taylor's car the next morning at the top. There was a little flesh on the handle of the door where it had pressed hard against something. The other car was a two-door sedan. The rear fender of her car was pretty bad; and the front fender was bent a little, but not bad. The door handle on her left-hand side was throwed back some, bent to the rear. If his body had not been protruding, it is possible that those cars would have passed without injuring anybody." The defendant was driving towards Trion, meeting the Weems car.

Ellenburg, another occupant of the Weems car, testified that Morgan "was asked to get in, * * * but he said something about he would just stand outside, that it would be crowded. * * * I didn't pay any attention to the car that struck Henry Morgan, I didn't see the car. I was sitting in another man's lap. * * * It was fairly dusty at the time. A car passed us. One whipped past us. * * * The first car was headed north. * * * Both cars passed on the left-hand side. That was the first I knew Morgan was struck, just a bump seemed like, I felt a bump. I told Mr. Morgan to come and get inside and he could sit on Williams' lap. I told him that because I did not like to see anybody riding on the outside of a car. I didn't like the idea of a man holding on to the left side of a car and standing on the running-board, because it was dangerous. He had his head in that car when he was hit. I don't know how far his body was protruding from the car." Wyke, another occupant, testified: "I did not see the car that struck Morgan before it struck him. A man was sitting on my lap, and this kept me from seeing him. The first indication I had that something had happened was that I felt a jar. * * * The road was very dusty. * * * I do not have any way of knowing how far Mr. Morgan's rear and back were protruding beyond the car. I guess it was sticking out to some extent. I do not know whether it was sticking out or not. Morgan's wound was on his left-hand side, extending from the anterior of the spine around in front to the spinal column in the rear, almost severing him half in two. Starting * * * just about the hip bone, it extended through to the spine, cutting all the fleshy part on the inside to the hard here. That was a torn wound, not a cut wound." The evidence for the defendant tended to show that the Weems car had just been passed by another car going in the same direction, and was trying to repass it, and that the Weems car was on its left side of the road, running at a high speed. The defendant testified that she saw the Weems car coming on her side of the road, and she pulled to the right and tried to miss it. There was evidence that Morgan was protruding two feet beyond the Weems car, and that the impact of his body with the defendant's car caused the cars to swing together in the rear.

The plaintiff in error contends that the uncontradicted evidence shows, that, although she may have been guilty of negligence in driving her car to the left of the center of the road, the deceased was so grossly negligent as to preclude any recovery; that by the use of ordinary care he could have avoided the results of her negligence, if any, that when the deceased rode on the left-side running board of the car under the circumstances developed by the plaintiff's evidence, such conduct in and of itself constituted gross negligence and precluded a recovery.

There was a sharp issue as to whether the defendant was over the center line of the road at all, but the jury has determined that. The defendant in error contends that whether such conduct by the deceased as was shown by the evidence was negligent, and whether he could have avoided the consequences...