Opinion
38944, 38958. 38956, 38957.
DECIDED SEPTEMBER 6, 1961.
Action for damages. Bulloch Superior Court. Before Judge Usher.
Anderson Sanders, W. J. Neville, Cohen Anderson, Faye Sanders, Kirk McAlpin, Frank W. Seiler, Bouhan, Lawrence, Williams, Levy McAlpin, for plaintiffs in error.
Lanier Lanier, Robert S. Lanier, contra.
The petition of a guest passenger, which alleged that the defendant host, driving in clear weather and daylight, weaved and swerved from one side of the road to the other, lost control and accelerated his speed and drove his vehicle off the right-hand side of the highway at over 60 miles per hour into a plainly visible culvert, making no effort to stop by applying the brakes or to turn to avoid striking the culvert, and that such conduct constituted gross negligence, stated a cause of action.
DECIDED SEPTEMBER 6, 1961.
The plaintiff (defendant in error on appeal) in each of the above cases sued the same defendants (plaintiffs in error) for damages resulting from personal injuries received while a guest in an automobile owned by one and driven by the other defendant.
Each petition, as amended, contains allegations in the following language: The defendant, while driving on the highway in clear weather and daylight, negligently allowed the automobile to swerve from side to side on the highway, negligently lost control of it, and negligently and carelessly accelerated its speed; negligently and carelessly lost control of said vehicle by not exercising proper care and diligence in controlling the movement of said vehicle and keeping the same in proper lane of traffic, but weaved from one side of the road to the other, not keeping said vehicle on a straight and proper course, and negligently accelerated the speed of said vehicle after having allowed the same to veer from side to side, and negligently ran said vehicle off said highway on the right-hand side and collided with a culvert which was located approximately fifteen feet from the eastern edge of said highway, striking the same with great force, thereby causing said vehicle to turn over, drove said vehicle into said culvert which was plainly visible at a speed in excess of sixty miles per hour, making no effort to stop said vehicle by applying the brakes and making no effort to turn said vehicle in order to avoid striking said culvert. The petitions allege that the defendant was grossly negligent in several particulars.
A general demurrer to each petition was overruled, and the defendants except in each case.
When facts alleged as constituting gross negligence are such that there is room for difference of opinion between reasonable men as to whether or not negligence can be inferred, and if so whether in degree the negligence amounts to gross negligence, the right to draw the inference is within the exclusive province of the jury. Fletcher v. Abbott, 92 Ga. App. 364 ( 88 S.E.2d 445); Parker v. Bryan, 93 Ga. App. 88, 96 ( 91 S.E.2d 49); Youngblood v. Ruis, 96 Ga. App. 283, 290 ( 99 S.E.2d 714); Blunt v. Spears, 93 Ga. App. 623, 632 ( 92 S.E.2d 573); Austin v. Smith, 96 Ga. App. 659, 663 ( 101 S.E.2d 169). The above allegations do not show these to be plain and indisputable cases in which the court may solve the question as a matter of law. We cannot say that the jury could not consider that the facts alleged amounted to a lack of even slight care for the guest passenger. Smith v. Hodges, 44 Ga. App. 318 ( 161 S.E. 284); Austin v. Smith, supra; Parker v. Johnson, 97 Ga. App. 261, 262 ( 102 S.E.2d 917).
The law requires that, unless the pleaded facts demand an inference of gross negligence, the petition of a guest passenger to withstand general demurrer must allege that the facts amount to gross negligence. The case of McBee v. Williamson, 96 Ga. App. 859 ( 101 S.E.2d 910), cited by defendants, so holds, and it is distinguished from the present case in that the allegations there did not meet this requirement.
The strongest case relied on by the defendants, to support the contention that the allegations set out above could not be considered gross negligence, is Tucker v. Andrews, 51 Ga. App. 841 ( 181 S.E. 673), where it was held error to overrule the defendant's motion for nonsuit. The reasons stated for that decision are that the only proof showing negligence was that the host driver's attention was distracted for not more than three seconds by an incident in the back seat where small children were riding, and there was nothing which indicated an indifference of the host driver to the duty owed the guest.
The overruling of defendant's general demurrers was not error.
Judgment affirmed. Felton, C. J., and Bell, J., concur.