Smith v. Thompson, 326 S.E.2d 244

Smith v. Thompson

326 S.E.2d 244 | Ga. Ct. App. | 1985

Birdsong, Presiding Judge.

Appellant Smith sued Thompson for injuries sustained in a collision when Smith was riding as passenger in Thompson’s car. The collision occurred in 1981 on a narrow dirt road when Thompson’s car crested a hill and ran into an oncoming car. Summary judgment was granted to Thompson. Held:

Appellant Smith contends summary judgment was improper because the jury should have decided the question of gross negligence, *274which was the standard of liability for a driver under the guest passenger rule in effect when this accident occurred (Epps v. Parrish, 26 Ga. App. 399 (106 SE 297)). (On November 1, 1982, OCGA § 51-1-36 became effective and established the duty of ordinary care of drivers to all persons. See Rider v. Taylor, 166 Ga. App. 474 (304 SE2d 557) as to the applicability of the guest passenger rule to accidents occurring prior to November 1, 1982.)

Decided January 14, 1985 Miles L. Gammage, for appellant. Richard B. Eason, Jr., Carolyn J. Kennedy, for appellee.

Summary judgment to Thompson was proper. Appellant Smith alleged in his suit and argues in his appellate brief that Thompson was driving in the middle of the dirt road and thus by gross negligence caused the collision. However, the record does not bear out this argument. Smith himself testified at deposition that Thompson was driving at a normal rate of speed considering the road conditions and was driving on the proper side of the road; that Thompson drove to the far right side of the road to avoid a mud rut in the center of the road; that he (Smith) heard the skidding sounds as the oncoming vehicle skidded on the gravel before impact; that he later measured the skidmarks and noted that the other car was skidding toward the center of the roadway. He testified he was sure Thompson could not have avoided the accident. There is no evidence in the record that Thompson was grossly negligent; this is only an allegation by conjecture. Summary judgment to Thompson was proper, as there was no material issue of fact. OCGA § 9-11-56; Summer-Minter & Assoc. v. Giordano, 231 Ga. 601 (203 SE2d 173).

Judgment affirmed.

Beasley, J., concurs. Carley, J., concurs in the judgment only.