50 Ga. App. 567 | Ga. Ct. App. | 1935
1. The motion to dismiss the writ of error is overruled. It can not be held that there was no bona fide effort to brief the evidence as required by the Civil Code (1910), § 6083 (Code of 1933, § 70-305). Peek v. Irwin, 164 Ga. 450 (139 S. E. 27); Blackburn v. Lee, 137 Ga. 265 (73 S. E. 1) ; Mooty v. Butler, 25 Ga. App. 121 (102 S. E. 842).
3. Although it is the rule in this 'State that the negligence of the driver of an automobile is not imputable to a person riding therein merely as a guest or invitee, and that until the guest has notice to the contrary he may assume that neither the driver nor others upon the highway will be negligent, and, may also assume that the driver will exercise the proper , care to avoid the negligence of others, yet the guest can not close his eyes to known or obvious dangers arising either from the acts of the driver or from the acts of others; and if there is danger from either cause, and the circumstances are such that the danger would become apparent to a person of ordinary prudence in like circumstances, then it is the duty of the guest to do whatever a person of ordinary prudence would or should do in the same or like circumstances. Whether the
4. The defendants in an amendment to their answer alleged as contributory negligence by the plaintiff that, after realizing the danger caused by the conduct and manner of driving of her husband, she permitted him to continue therein, “without demanding of him that he stop and desist from doing so, or getting from said automobile.” In charging on the question of contributory negligence, the judge both read the averment in the pleading as to her “getting from said automobile,” and submitted to the jury the question as to whether she was negligent in failing to leave the car. Under the testimony for the. defendants that the automobile was traveling at a speed of forty or fifty miles an hour, and the testimony for the plaintiff that the speed was twenty to twenty-five miles an hour, it could hardly be said that mere failure by the plaintiff to leave the car, taking with her or leaving behind her baby which she was holding, while the machine was in such rapid motion, could in any event be accounted contributory negligence. It would, however, have been proper for the jury to consider, under the averments as to contributory negligence and all the evidence, whether her failure to warn or protest to the driver, or to request him to stop so that she might leave the car if he persisted in his alleged conduct and manner of driving, would amount to contributory negligence. While the judgment is not reversed on these grounds, as the ease will have to be tried again, attention is called to these instructions, which it would have been better to clarify as indicated.
5. The verdict for the defendant was authorized, but not demanded, by the evidence. The charge of the court was full, fair, and clear in setting forth the issues involved; and no error appears, save in respect to the'