116 Ga. App. 598 | Ga. Ct. App. | 1967
Lead Opinion
One of the controlling questions involved in this case is whether or not the defendant owed the plaintiff the duty to exercise ordinary care.
The status of an invited guest is determined by the intent and purpose of the host at the time of the invitation. In this case it is sought to prove, as it was alleged, that the plaintiff was invited on the trip for the purpose of rendering substantial assistance to the defendant and her husband. There is no evidence to support such a conclusion. The defendant testified positively that such was not the purpose of the invitation. The plaintiff “asked” to be invited because she loved to go on such trips. That the plaintiff incidentally rendered beneficial services by attending to the children on the trips, as against deriving pleasure for herself by attending them, is immaterial. The sole question is what was the purpose and intent of the host in extending the invitation. In this case it was for the sole benefit of the guest. There is certain testimony of the appellant which the appellee contends authorized the finding that one principal purpose of the trip was the rendition of substantial services to the appellant and her husband. The record shows the following questions and answers to and by the plaintiff:
“Q. All right, was that the purpose of your trip in going along with your daughter in her condition and to bring those children back? A. Well, I went because I enjoy going to her mother’s and to help with her if she got sick and to help with the children if there was any need to be of any help. Q. And did you and she both agree on this? A. Well, I had asked them when they went to let me go, so I could go with them. Q. And was that the purpose stated to help them did you say? A. Yes, sir. Q. And did she agree on this? A. Yes she was glad for me to go because I always went with them when they went.”
Most of the answers to the above questions were ambiguous, evasive and not directly responsive to the questions. Not one time did the plaintiff positively state that she was invited in order to render a substantial benefit. If the “yes” answer to the
The trial court erred in charging the jury on the issue of the defendant’s failure to exercise ordinary care.
Did the evidence demand a finding that the defendant was not guilty of gross negligence? We are of the opinion that it did not. Whether the defendant’s actions of throwing up her hands and screaming when confronted with an approaching truck in her line of traffic was the result of an emergency situation and excused her from being charged with gross negligence, was a question of fact and one for the jury. Shockey v. Baker, 212 Ga. 106, 110-111 (90 SE2d 654); Fetzer v. Rampley, 81 Ga. App. 806, 809 (60 SE2d 184); Ware v. Alston, 112 Ga. App. 627, 630 (145 SE2d 721); Young v. Tate, 112 Ga. App. 603, 606 (145 SE2d 747). This court cannot hold as a matter of law that the defendant’s actions of throwing up her hands screaming demanded a finding that she exercised slight care.
Judgment reversed for the reasons stated in Division 1.
Concurrence in Part
concurring in part and dissenting in part.
I concur in the rulings in Division 1 of the majority opinion and in the judgment reversing the overruling of the motion for a new trial.
I dissent from Division 2 of the majority opinion and from the judgment of the majority affirming the denial of the
In Shockey v. Baker, 212 Ga. 106, cited by the majority, the evidence held sufficient by the Supreme Court was sufficient to authorize the finding that because of the speed at which she was driving on the highway, the defendant, Mrs. Shockey, was the cause of the emergency and of course in such a case she could not obtain the advantage of the doctrine. The emergency • in the instant case as a matter of law under the evidence was not caused by the negligence of the defendant, (b) The evidence did not authorize a finding that the defendant was guilty of gross negligence. First, the doctrine of the last clear chance does not apply to a situation such as existed in this case, the fact of a sudden emergency, due solely to the negligence of a third party, which placed both the plaintiff and defendant in a position of dire peril. Napier v. DuBose, 45 Ga. App. 661 (165 SE 773). While that opinion deals with a case where ordinary care was owed it states the principle controlling the question whether the doctrine is applicable in cases of sudden emergencies not due to the defendant’s negligence.
The evidence did not authorize a finding that the defendant was guilty of gross negligence, because the circumstances of this case show such an emergency as to excuse the exercise of conscious slight care because of the suddenness and nature of the emergency and because the consequent necessity of an instantaneous judgment and decision as to defensive action caused the loss of “presence of mind” on the part of the defendant. Ware v. Alston, 112 Ga. App. 627 (145 SE2d 721). In this case, as stated in the petition, a Pepsi Cola truck attempted to pass
In Tidwell v. Tidwell, 92 Ga. App. 54 (87 SE2d 657) this court approved the following definition of gross negligence: “Gross negligence is equivalent to failure to exercise even a slight degree of care. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care. It is very great negligence or the absence of slight diligence, or the want of even scant care.” (Emphasis supplied.) As was stated in a brief in a case not yet argued in this court: “It is not the reaction of a startled woman in an emergency situation,” one which she did not create. For other cases holding as a matter of law that the evidence did not authorize a finding of gross negligence see: Harris v. Reid, 30 Ga. App. 187 (117 SE 256); Edwards v. Ford, 69 Ga. App. 578 (26 SE2d 306); Helms v. Leonard, 170 FSupp. 143.
Judge Eberhardt concurs in the foregoing special concurrence and dissent.