Opinion
35148.
DECIDED MAY 13, 1954.
Action for damages. Before Judge Caswell, presiding. Liberty Superior Court. February 8, 1954.
W. C. Hodges, for plaintiff in error.
Mark Dunahoo, contra.
Ordinarily, questions of negligence, gross negligence, contributory negligence, whose negligence was the proximate cause of an injury, and related questions are for the jury alone, and the courts will decline to solve such questions on demurrer or by a decision on the general grounds of the motion for new trial except in plain, palpable, and indisputable cases.
DECIDED MAY 13, 1954.
Waymond John Altman (whom we shall call the plaintiff) brought an action against Cheatham E. Fields and Mrs. Cheatham E. Fields. We shall refer to them by their respective names, and collectively as the defendants. General and special demurrers were filed by the defendants to the petition. The petition was amended to meet the special grounds of the demurrer, and the general grounds of the demurrer to the petition as amended were overruled. On this judgment error is assigned.
Substantially, the petition as amended was as follows: Paragraph 1 sets forth the residence of the defendant.
Paragraph 2 states the amount of recovery sought as $50,000, including physical injuries and pain and suffering.
Paragraph 3 alleges that, at approximately 2 in the afternoon, the plaintiff was a passenger in a 1949 two-door Chevrolet car driven by Cheatham E. Fields on a public highway in Georgia; that the highway had ramps, driveways, and other means of turning off the right-of-way.
Paragraph 4 alleges that at a point on said highway the car was being operated by Cheatham E. Fields; that he stopped the car to enter a gate across a private road leading to his home.
Paragraph 5 alleges that the car was driven by C. E. Fields, and that the plaintiff had no control over its operation; that, when C. E. Fields drove off the highway and stopped the car, he walked toward the gate for the purpose of opening it.
Paragraph 6 reads in part as follows: "When said Cheatham E. Fields stopped said automobile he got out of same to open said gate, and immediately upon opening same he called back to the defendant, Mrs. Cheatham E. Fields his wife, to drive through; that she got under the steering wheel, the engine was still running, and placed it in first gear and mashed the accelerator to the floor board of said automobile, causing said automobile to lunge forward and after passing through the gate, instead of following the driveway by turning to the left she drove said automobile straight forward into an oak tree." The other part of this paragraph is quoted in the body of the opinion.
Paragraph 7 reads: "Said Mrs. Cheatham E. Fields was negligent in operating said automobile while intoxicated and drunk, and at a rate of speed of 40 miles per hour and leaving the driveway and driving said automobile into a tree, and without any effort to avoid hitting same."
Acts of negligence alleged, as amended, are as follows: "The acts of negligence on the part of the defendants, through Mrs. Cheatham E. Fields in operating said automobile which caused the collision as hereinbefore described, inflicting upon your petitioner the injuries alleged and damaging petitioner to the extent set forth as follows: Said defendant, Mrs. Cheatham E. Fields was driving said automobile without keeping an adequate lookout in front of her for the direction in which she was traveling.
"(b) The said defendant was driving without having said automobile under immediate control.
"(c) The defendant, Cheatham E. Fields, was negligent in directing his wife, the defendant, Mrs. Cheatham E. Fields, to drive said automobile while she was drunk and intoxicated and known by him to be so, and that she was negligent in operating said automobile while drunk and intoxicated, and at a speed of 40 miles per hour, and leaving the driveway [driving] said automobile into a tree without any effort to avoid hitting same; and that such conduct on the part of each defendant was gross negligence."
Paragraph 9 reads: "Defendants, through defendant, Mrs. Cheatham E. Fields, and in the manner aforesaid, carelessly, wantonly, and negligently, and unlawfully inflicted upon your petitioner the following injuries to wit: (a) Bruised, sprained and pulled ligaments in the neck, right shoulder from a terrific impact received from the full force of the blow in the forehead and shoulders when said automobile collided with said oak tree rendering your petitioner's arm incapable of use at all for several months and to no appreciable degree today.
"(b) Severe lacerations of the forehead ranging from one to three inches in length, requiring 35 stitches all of which has caused ugly grotesque scars which will remain during the remainder of your petitioner's life.
"(c) Your petitioner lost some 500 ccs of blood from the lacerations which were bleeding profusely; thereby causing petitioner to be extremely weak for many months from the loss of said blood.
"(d) The lacerations sutered and the healing was delayed because of wounds inflicted by cut glass that remained in petitioner's forehead some of which is still present.
"(e) Petitioner's head was thrust through the windshield and small portions of glass were embedded in his head. The impact caused strained and wrenched neck and back.
"(f) Your petitioner suffered a great shock and has been and will continue to be exceedingly nervous because of said collision.
"(g) Petitioner suffered a severe brain injury from said collision and still suffers pain in the head because thereof; that he has dizzy spells because of same. He also shows that because of his weakened condition, loss of blood and lowered physical vitality due to this brain injury he has contracted tuberculosis, all of which is traceable to said collision."
Paragraph 10 reads: "Your petitioner continues to suffer physical pain and suffering from these said injuries, extremely nervous, unable to sleep, and is still unable to perform any of his duties."
Paragraph 11 reads: "Because of said injuries, petitioner was totally disabled to perform any work whatever, and will be partially disabled permanently the rest of his life as he has never fully regained his normal strength from the loss of blood and has continued to suffer from dizzy spells and untold physical pain and suffering from the head, neck and shoulder. Your petitioner because of the loss of blood has been unable to regain any strength and as a consequence of such injury and continued weakened condition contracted tuberculosis."
Paragraph 12 reads: "By reason of the continued untold physical pain and suffering for these stated injuries this suit is brought to recover therefor in the sum of $5,000 [$50,000] as an item of damage."
Paragraph 13 reads: "Petitioner, before said collision, was a man of thirty years of age with an expectancy of 35 years to live and was earning and capable of earning the sum of $300.00 per month from his labor and but for the aforesaid injuries, would have continued to earn as an average, a minimum of $3600.00 per year. Because of aforesaid injuries, petitioner has been totally disabled since the time of the collision and because of the aforesaid injuries and disability aforesaid and he sues for the said loss in the sum of $50,000.00."
The only issue presented to this court is whether the allegations of the petition are sufficient to allege gross negligence against the defendants. The petition shows that the plaintiff was a guest of the defendants in the car operated by the defendants.
Ordinarily, questions of negligence, gross negligence, contributory negligence, whose negligence was the proximate cause of an injury, and related questions are for the jury alone, and the courts will decline to solve such questions on demurrer or by a decision on the general grounds of the motion for a new trial except in plain, palpable, and indisputable cases. Alford v. Zeigler, 65 Ga. App. 294, 300 ( 16 S.E.2d 69); Cox v. Norris, 70 Ga. App. 580 (3) ( 28 S.E.2d 888); DeGolian v. Faulkner, 74 Ga. App. 866 ( 41 S.E.2d 661); Louisville c. R. Co. v. Patterson, 75 Ga. App. 1, 4 ( 42 S.E.2d 163).
The defendants call our attention to and rely on Williams v. Owens, 85 Ga. App. 549 ( 69 S.E.2d 787), and Brown v. Binns, 87 Ga. App. 485 ( 74 S.E.2d 370). By referring to the petition in the instant case it will clearly appear that the facts here are entirely different from those in the cases relied upon by the defendants. We particularly call attention to a portion of paragraph 6 which reads as follows: " When said Cheatham E. Fields stopped said automobile he got out of same to open said gate, and immediately upon opening same he called back to the defendant, Mrs. Cheatham E. Fields his wife, to drive through; that she got under the steering wheel, the engine was still running, and placed it in first gear and mashed the accelerator to the floor board of said automobile, causing said automobile to lunge forward and after passing through the gate, instead of following the driveway by turning to the left she drove said automobile straight forward into an oak tree. That she was drunk or intoxicated at the time, and held the accelerator to the floor board until the automobile struck the tree aforesaid and was traveling at 40 miles per hour, demolishing the automobile in which they were riding. When she got under the steering wheel, petitioner asked her not to drive as she was too drunk, but to let him drive same. Instead of so doing she immediately mashed the accelerator to the floor board and drove off, before petitioner could get out of said automobile." (Italics ours.)
It further appears that the allegations in the instant case show that Cheatham E. Fields had been driving the car when he stopped it to open the gate. He left the motor running. At the time he left the motor running and got out, he knew that his wife, Mrs. Cheatham E. Fields, was drunk to such an extent that she could not safely operate the car. She moved over from the middle of the seat to a position under the steering wheel and immediately plunged the car into a speed of 40 miles per hour before the plaintiff had time to get out of the car.
The court did not err in overruling the general demurrer to the petition.
Judgment affirmed. Townsend and Carlisle, JJ., concur.