De Winne v. Waldrep
| Decision Date | 18 April 1960 |
| Docket Number | No. 38258,No. 1,38258,1 |
| Citation | 114 S.E.2d 455,101 Ga.App. 570 |
| Parties | Ernest DE WINNE v. M. B. WALDREP |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
One who knowingly and voluntarily takes a risk of injury to his person, the danger of which is so obvious that the act of taking such risk, in and of itself, amounts to a failure to exercise ordinary care and diligence for his own safety, can not hold another liable for damages for injuries thus occasioned.
Marvin B. Waldrep sued Ernest DeWinne to recover for injuries and damages sustained when he fell from the rear of a pickup truck being operated by the defendant. It was alleged that the defendant owned the pickup truck, that the defendant urged the plaintiff to aid him in hunting deer from such pickup truck, that for a period of time the plaintiff rode in the cab of the truck with the defendant, that later a third person joined them and the plaintiff was instructed to take up a position in the rear of the truck where he stood, 'that plaintiff did secure his position in the back of said pickup truck by bracing his right foot against the inside of said truck's body, bracing his left foot against a tire and wheel on the floor of said truck and leaning with his chest against the back of the cab of said truck, further securing himself by holding with his right hand to the inside of the right window of said truck, and that the position in which the plaintiff was stationed at the direction of the defendant was a safe and proper position for hunting deer so long as the truck was operated in a careful and proper manner.' It was further alleged that the defendant let his attention be diverted from his driving, while driving across a field, dotted with trees, at a speed of 30 miles per hour by a deer on the right side of said truck, that when the defendant returned his attention to his driving he discovered a tree located directly ahead of said truck, that the defendant suddenly turned at an angle of approximately 70 degrees to the left, when a 30 degree turn would have resulted in the truck missing such tree, that said turn was made without any warning to the plaintiff and without slowing down such truck, that the plaintiff had his eyes fixed upon the deer for the purpose of shooting it, and that as a result of such turn being made without warning to the plaintiff he was violently thrown from the truck causing his injuries and damages. The petition contained other allegations not necessary for a decision of the case. The defendant filed various special and general demurrers to the petition which were overruled, and it is to such judgments adverse to him that the defendant now excepts.
William B. Freeman, Forsyth, Martin, Snow, Grant & Napier, George C. Grant, Macon, for plaintiff in error.
Hugh Dorsey Sosebee, Harold G. Clarke, Forsyth, for defendant in error.
While the defendant argues that the plaintiff cannot recover because they, the plaintiff and the defendant, were engaged in an illegal enterprise, to-wit: Hunting deer from a truck in violation of a Texas Statute, Vernon's Ann.P.C.Tex. art. 901, pleaded in the petition, as well as other reasons as to why his demurrers should have been sustained, since the plaintiff's petition was subject to general demurrer for the following reason these other contentions need not be considered.
Many decisions have been written in Georgia and elsewhere with reference to whether a person, not in a passenger's seat, is in the exercise of ordinary care for his own safety when he is ...
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Kreiss v. Allatoona Landing, Inc., 40055
...& W. P. R. Co., 105 Ga.App. 340, 361, 124 S.E.2d 758; Youngblood v. Henry C. Beck Co., 93 Ga.App. 451, 91 S.E.2d 796; DeWinne v. Waldrep, 101 Ga.App. 570, 114 S.E.2d 455; Staples v. Brown, 96 Ga. App. 176, 99 S.E.2d 526. Thus when both the defendant and the plaintiff are negligent, whether ......
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Freeman v. Martin
...593, 23 S.E.2d 544), or who stands in the rear of a truck moving across a field assumes the risk of falling out of it (DeWinne v. Waldrep, 101 Ga.App. 570, 114 S.E.2d 455), and a laborer assumes the risk naturally incident to and in the course of his employment (Noble v. Jones, 103 Ga. 584,......
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Stukes v. Trowell, 44179
...v. Frigidice Co., 68 Ga.App. 593, 23 S.E.2d 544; or of standing on the rear of a truck moving across an open field, DeWinne v. Waldrep, 101 Ga.App. 570, 114 S.E.2d 455; and that a laborer assumes the risks naturally incident to and in the course of employment, Noble v. Jones, 103 Ga. 584, 3......
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Adams v. Smith
...defendant not to back the car over him, but defendant did so, despite the requests from plaintiff. Appellant cites DeWinne v. Waldrep, 101 Ga.App. 570, 114 S.E.2d 455, but that case was not decided on the illegal enterprise of hunting deer from a truck in violation of a Texas statute, but o......