West v. Rosenberg
| Decision Date | 16 October 1931 |
| Docket Number | No. 21229.,21229. |
| Citation | 160 S.E. 808,44 Ga.App. 211 |
| Parties | WEST v. ROSENBERG. |
| Court | Georgia Court of Appeals |
Syllabus by Editorial Staff.
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 by the Court.
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 see very 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 defendant's actionable negligence, that is if you find that he was guilty of gross neglect, and this gross neglect was the proximate cause of the injury to the plaintiff, then it would be your duty to bring in a verdict for this plaintiff for damages for whatever amount of damages you find he is entitled to recover, " was not error for any reason assigned. While the first portion of the charge, relative to an act putting into operation other forces which are natural and which the act would reasonably and probably put in action might be subject to the only criticism made of it, that it was not adjusted to the pleadings and the facts of the instant case, it does not appear that such instruction could reasonably have been harmful or prejudicial to the rights of the defendant. Dolvin v. American Harrow Co., 131 Ga. 300(10), 62 S. E. 198; Butler v. Lovelace-Eubanks Lumber Co., 37 Ga. App. 74, 75, 139 S. E. 83. This portion of the charge did not amount to an expression of opinion on the part of the court that the defendant had in fact put in operation other forces which resulted in injury to the plaintiff.
The remainder of the excerpt complained of, when taken in connection with the remainder of the charge, could not have been...
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