West v. Rosenberg
| Decision Date | 16 October 1931 |
| Docket Number | 21229. |
| Citation | 160 S.E. 808,44 Ga.App. 211 |
| Parties | WEST v. ROSENBERG. |
| Court | Georgia Court of Appeals |
Syllabus by Editorial Staff.
One riding by invitation and gratuitously in another's automobile cannot recover for driver's negligence, unless driver's conduct amounted to gross negligence.
Questions of negligence and diligence, gross negligence of defendant proximate cause, and plaintiff's care, are generally for jury.
One driving automobile through city at excessive speed on rainy night with defective windshield wiper, who collides with traffic light, which he observed, is grossly negligent, as regards guest's injury.
Allegation respecting guest's calling automobile driver's attention to defective condition of windshield wiper on rainy night, held germane to guest's cause of action for driver's gross negligence.
Grounds of negligence charged in petition are not mere conclusions where basic facts are set forth.
Instruction as to liability when wrongful act puts other forces in operation, if erroneous, held not prejudicial to defendant in action for injuries.
Instruction as to liability when wrongful act puts other forces in operation, held not expression of opinion that defendant had put forces in operation resulting in plaintiff's injury.
Instruction authorizing plaintiff's recovery for defendant's gross negligence, held not erroneous for omission of reference to contributory negligence, in view of other instructions.
Permitting jury to consider damages for pain and suffering held not error, notwithstanding failure to allege pain as element of damage.
Where charge is not excepted to, no question is presented as to whether evidence warranted it.
Gross negligence of driver of automobile, colliding with traffic signal light on rainy night, held for jury in guest's action for injuries.
There was evidence that the falling rain obscured the vision of the defendant, that his automobile was traveling 35 to 40 miles per hour, and that he should have known of the presence of the obstruction in the highway.
Invited guest in automobile, asleep in rear seat, held not as matter of law, guilty of contributory negligence, precluding recovery from driver for injuries.
Error from City Court of Albany; Clayton Jones, Judge.
Action by Meyer Rosenberg against J. J. West. Judgment for plaintiff, and defendant brings error.
Affirmed.
McDaniel, Neely & Marshall, of Atlanta, and S. B. Lippitt, of Albany, for plaintiff in error.
Bennet & Peacock, of Albany, for defendant in error.
Syllabus OPINION.
1. "One riding by invitation and gratuitously in another's automobile can not recover for injury caused by the other's negligence in driving, unless it amounted to gross negligence." Epps v. Parrish, 26 Ga.App. 399, 106 S.E. 297; Blanchard v. Ogletree, 41 Ga.App. 4(1), 152 S.E. 116, and cases cited. But questions of negligence and diligence, even as to gross negligence and slight diligence, as well as the determination of what constitutes the proximate cause of an injury, and what amounts to a failure to exercise ordinary care on the part of a plaintiff, are generally questions for the jury. Rosenhoff v. Schaul, 42 Ga.App. 776, 157 S.E. 215, 217; Farrar v. Farrar, 41 Ga.App. 120, 121, 152 S.E. 278.
2. In the instant suit against the driver of an automobile by one riding therein as his invited guest, for damages on account of injuries sustained when the defendant drove the car into and against an obstruction placed in the center of a city street by the municipal authorities, consisting of an iron post set in a heavy concrete base, rising several feet above the ground, and supporting a traffic signal light flashing red, where it was alleged that the defendant was driving on a rainy night at a speed exceeding thirty-five miles per hour, in violation of an ordinance of the city limiting the speed of automobiles to fifteen miles per hour, and while the windshield wiper was not working, to which his attention had been called by passengers in the car, and while it was impossible for him to keep a proper lookout for danger or seevery well; that the defendant knew the location of the traffic signal light, and that at the time he approached the obstruction the light toward the defendant showed red, and was observed by him; and that the defendant drove directly into the obstruction, which acts, it was alleged, constituted gross negligence, the petition set forth a cause of action good as against general demurrer.
(a) The allegations of the petition relative to calling the attention of the defendant to the defective condition of the windshield wiper as the car was being driven through the rain, while not sufficient to show a change in the legal relationship existing between the driver of the automobile and his invited guest (Blanchard v. Ogletree, supra), were germane to the cause of action as laid in the petition, since such facts tended to illustrate the degree of the defendant's negligence in continuing to drive the automobile under the conditions set forth.
(b) The grounds of negligence charged in the petition were not mere conclusions of the pleader, since the facts upon which they were based were set forth by the petition.
(c) The court did not err in overruling the general and special demurrer.
3. The charge of the court that "it is a rule of law that, when a wrongful act puts other forces in operation which are natural and which the act would reasonably and probably put in action, the party who puts in force the first efficient cause would be responsible for the injury proven, and, if you find that the plaintiff in this case was injured by the...
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