Mrs. Rozell Hanley sued Donny Pritchett and Ford Motor Company for the wrongful death of her 17-year-old son, Ronny Hanley, who was a guest passenger in a 1970 Ford "Boss” Mustang automobile owned by the defendant Pritchett and allegedly negligently designed and constructed by defendant Ford. After a six-day trial, the jury returned a verdict for both defendants. Plaintiff appeals enumerating as error three portions of the trial judge’s charge to the jury. Held:
1. The first charge complained of is as follows: "I charge you this principle with reference to the plaintiffs deceased son, Ronny Hanley. If you find from the evidence there was something present at the time and place of the event under investigation, which would have caused an ordinarily prudent person to reasonаbly apprehend the probability of danger, then it was the duty of plaintiffs son to take such steps as an ordinarily prudent person would have taken tо ascertain whether such danger existed as well as to avoid the consequences of the same after its existence is ascertained. It’s thе duty of all persons to use due care for their own safety and to use their natural senses to discover obvious or known dangers. If plaintiffs son, by the exеrcise of ordinary care, could *308 have avoided the consequences to himself, then plaintiff could not recover in this case of either defendant.”
(a) The evidence regarding defendant Pritchett’s driving at the time of the accident, was highly conflicting. Defendant Pritchett testified that he was trаveling between 40 and 60 mph (on cross examination) and only about 45 mph (on direct examination) just before the accident when he saw fire up in front of the windshield coming up from under the hood; that he lost control of the car, which then left the road, overturned, and subsequently caught fire. Pritchett’s date, who was occupying the right front seat of the car, testified substantially as did Pritchett. She did not know the speed of the car definitely, but stated that she did not remеmber anything wrong with its operation and that Pritchett was driving properly. As opposed to this, the physical evidence showed that the automobile mаde 144 feet of skid marks on the road and traveled 198 feet off the road into a field before turning over and coming to rest. In the process of so doing, the automobile tore down 5 fence posts and 54 feet of wire fencing. Based on these facts, the investigating officer, a member of the Georgia State Patrol, and two experts estimated the speed of the car to have been in excess of 70 mph. Obviously, if the direct testimony was correct, the plaintiffs son was under no duty to warn. If the opinion evidence is correct, it becomes incumbent upon the defendants to show that the driver’s negligent conduct had existed for a sufficient length of time for the plaintiffs son to have notice thereof before any duty would devolve upon him tо warn the driver, urge him to slow down, or take affirmative action. The record is absolutely silent as to any improper or negligent driving by defendant Pritchett рrior to the instant immediately preceding the accident. The uncontroverted evidence shows that the plaintiffs son and another young man were in the back seat and that
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they were talking to Pritchett’s date immediately prior to the accident. There is nothing in the record that suggests that Pritchett was driving improperly as early as 30 seconds prior to losing control of the car (for whatever reason) or that the plaintiff’s son had any noticе or opportunity to become aware of such conduct so as to be able to caution Pritchett about his driving. In
Bellamy v. Georgia Power Co.,
(b) The quoted excerpt from the charge was further erroneous in that it instructed the jury that the рlaintiff could not recover "in this case of either defendant.” As was stated by former Chief Judge Felton in
Baynes v. McElrath,
2. The second portion of the charge enumerated as error is as follows: "Plaintiffs deceased son, Ronny Hanley, was a guest riding in the Pritchett car on the date and time in question, but there is a duty of a guest passenger to exercise ordinary carе to avoid the negligence of anyone — strike that — there is a duty of a guest passenger to exercise ordinary care to avoid the negligеnce, if any, of the driver host or automobile manufacturer, if any, when such negligence becomes known to him.” For the reasons set forth in Division 1 (a) of this opinion, the charge was erroneous.
3. The third portion of the charge enumerated as error is as follows: "I charge you this principle of lаw, ladies and gentlemen, that where the continuous possession and control of an automobile or other physical personal property, the subject matter of the actions in question, remains in one of the parties to the action, that party has the burden of explaining any change or alteration *311 in that automobile or other physical property from the time of the collision to the present time.”
No harmful error is shоwn by this charge. It clearly applies to the condition of the automobile in question from the time of the collision to the time of the trial.
For the reasons set forth in Divisions 1 (a and b) and 2 hereinabove, the trial judge erred in denying the plaintiffs motion for new trial.
Judgment reversed.