Opinion
35601.
DECIDED MAY 16, 1955. REHEARING DENIED JUNE 28, 1955.
Damages. Before Judge Hendrix. Fulton Superior Court. November 19, 1954.
Marshall, Greene Neely, Barrett Hayes, for plaintiffs in error.
John L. Westmoreland, John L. Westmoreland, Jr., contra.
Since the evidence did not authorize a verdict for the plaintiff, the court erred in overruling the defendants' motion for a judgment notwithstanding the verdict.
DECIDED MAY 16, 1955 — REHEARING DENIED JUNE 28, 1955.
Albert James Shockey sued Mrs. Frank W. Baker and Frank W. Baker for damages allegedly caused by Mrs. Baker's negligent operation of an automobile.
The plaintiff was operating his automobile along Roswell Road traveling from Sandy Springs, Georgia, to Atlanta. It had snowed the night before and the pavement in the roadway was wet. The plaintiff was driving along at about 45 miles per hour and as he started around the first curve in an "s-curve" he noticed an old automobile in front of him traveling in the same direction as the plaintiff and at a very slow rate of speed. The plaintiff testified: ". . . It was going real slow and I was going fairly good and I didn't want to pass him on the curve, so I put on my brakes and when I did the car started to skidding and rather than to run into the back of him I had to cut to the left, which took me across the road and through the fence and down into this little embankment . . ." The plaintiff's automobile continued over the embankment and down into a ravine and turned over. The plaintiff then crawled from his wrecked automobile and made his way across the road to a house and made several phone calls, one of which was for wrecker service to recover his automobile. He then returned to his automobile where he gathered up some loose automobile parts and put them in the trunk of his automobile. While there he also talked with the owner of the land about the damage to the fence caused by his car's leaving the road. He then took a position up the embankment away from his automobile and towards the top of the embankment, near a tree. After standing at this point for some minutes he observed a car on the roadway swerve or skid and determined that he was in a dangerous position. As he was walking to a new position Mrs. Baker's automobile came through the fence and struck him. He did not see Mrs. Baker's automobile until it had left the road and was coming through the fence, which was about ten feet away from him.
After the plaintiff had gone back to the ravine and was standing near the tree, Mrs. Baker was driving along Roswell Road in the same direction in which the plaintiff had been driving and when she reached the same vicinity in which the plaintiff had skidded, her automobile began to skid and she went over the embankment into the ravine, striking the plaintiff. She did not see the plaintiff at all during this time.
The acts of negligence alleged against Mrs. Baker were as follows: "1. In operating the said automobile on said Roswell Road at a reckless and dangerous rate of speed. 2. In failing to keep a lookout ahead in the direction in which the defendant, Mrs. Frank W. Baker, was driving. 3. In failing to have the said automobile under immediate control. 4. In failing to apply the brakes of the automobile in sufficient time to avoid hitting and striking the plaintiff. 5. In failing to bring the said automobile to a stop prior to colliding with and striking the plaintiff. 6. In operating the said automobile across the left lane, or east lane, of Roswell Road, and off onto the dirt on the east side of Roswell Road and colliding with the plaintiff as hereinbefore described. 7. In applying the brakes of the said automobile in such a manner as to cause the automobile to go out of control of the defendant, Mrs. Frank W. Baker. 8. In failing to hold onto the steering wheel of the automobile to retain control of the same. 9. In failing to operate the said automobile in the right-hand side lane, or west lane, of Roswell Road in the direction defendant, Mrs. Frank W. Baker, was proceeding. 10. In failing to give any warning to plaintiff prior to striking and injuring him."
At the close of the evidence the defendant moved for a directed verdict, which motion was denied. The jury returned a verdict for the plaintiff against both defendants. The defendants then moved for a judgment notwithstanding the verdict and this motion was denied. The defendants' amended motion for a new trial was denied. The defendants except to the denying of their motion for a judgment notwithstanding a verdict and their motion for a new trial.
The evidence did not show any negligence on the part of Mrs. Baker.
1. The only evidence as to the speed of Mrs. Baker's automobile, other than that of Mrs. Baker and her son that she was traveling at about 25 miles per hour, was the testimony of the plaintiff that he first saw Mrs. Baker's automobile just as it crashed through the fence and started down the ravine and that, in his opinion from observing the speed of her automobile from that point to where it struck him some ten or fifteen feet away, she was traveling 50 miles per hour. Such observation was insufficient for the plaintiff to base his conclusion on and his testimony furnished no basis on which a jury could find the automobile's speed. Allen v. Hatchett, 91 Ga. App. 571 ( 86 S.E.2d 662). There was no evidence authorizing the jury to find that Mrs. Baker was operating her automobile in excess of 25 miles per hour.
2. Mrs. Baker testified that she did not see any ice on the roadway that morning. The plaintiff testified to substantially the same fact. However, Mrs. Baker's son, who was riding with his mother at the time, testified that, as his mother's automobile approached the vicinity in which the skidding took place, his mother was driving at about 25 miles per hour; that he observed some ice in the roadway ahead at about a distance of some 30 or 40 feet and that his mother ran over this ice and the automobile went over the embankment. It is contended that such testimony authorized the jury to find that Mrs. Baker was negligent in not seeing the ice at approximately the same distance at which her son saw it and in not avoiding the ice and the resulting events. The evidence is undisputed that Mrs. Baker was driving at a speed of 25 miles per hour. At such speed she was traveling 35 feet per second. Even if Mrs. Baker had seen the ice on the roadway when she was 30 to 40 feet away from it, a jury could not say that she was negligent in continuing to drive across the ice rather than trying to swerve around it or to put on her brakes. Therefore, the failure to see the ice did not amount to negligence which alone would support a cause of action or which could render her responsible for the perilous situation.
3. The plaintiff testified that, after the incidents on Roswell Road and while he and Mrs. Baker were at the hospital, she told him that after her automobile began skidding she took her hands from the steering wheel and grabbed her two-year-old daughter, who was on the front seat, to protect her. It is contended that this constituted negligence on the part of Mrs. Baker. We do not agree. A person faced with an emergency or imminent peril is not held to the same degree of care to which he would be held if he were acting without the compulsion of the emergency ( Baggett v. Jackson, 79 Ga. App. 460, 464 (2), 54 S.E.2d 146, and citations), and "An emergency may arise so suddenly and unexpectedly that a prudent person would have no time to comprehend the situation and act according to the exigency, and under such circumstances negligence cannot be predicated on the conduct of the person placed in such a situation even though the emergency was one consisting of imminent peril to himself, for under such circumstances the act or omission of the endangered person is presumed to have been involuntary." 65 C. J. S. 412, § 17 d. See also Cataoka v. May Department Stores Co., 28 F. Supp. 3 (5, 6, 7); 38 Am. Jur. 686, § 41. There is nothing in the evidence to show that Mrs. Baker's position of peril, and that of her two-year-old daughter, was caused by her own negligence. She testified that she did not see the plaintiff and the evidence does not dispute this, nor does it show any reason why Mrs. Baker should have seen him. If Mrs. Baker did turn loose the steering wheel and grab her daughter, surely she acted instinctively in seeking to protect her daughter and she certainly had the right to choose, even if she had had time to make a deliberate choice, to protect her daughter from the dangers of the position of peril rather than someone whose own position of peril was unknown to her and whose position of peril she had no reason to suspect.
The evidence failed to show that Mrs. Baker, and consequently Mr. Baker, was guilty of any negligence which would support a cause of action.
It is not necessary to rule on the question whether, under the family-purpose doctrine, the husband, Mr. Baker, would be liable for his wife's negligent operation of an automobile purchased and owned by her and for which he furnished gas and oil.
The court erred in denying the defendants' motion for a judgment notwithstanding the verdict.
Judgment reversed. Quillian and Nichols, JJ., concur.