58 Ga. App. 219 | Ga. Ct. App. | 1938
Lead Opinion
1. From a careful consideration of the evidence we do not think that it could be said as a matter of law that the defendant was not grossly negligent; and the court erred in granting a “nonsuit” or in withdrawing from the jury the issue under count 2 of the petition, which was based on gross negligence. Furthermore, the court could not legally grant a partial nonsuit, as will be seen from the authorities cited later in this decision.
Without setting forth the evidence in detail, it may be stated that it appears that the defendant was driving his bus along the LaFayette highway, approaching the intersection beyond which the collision occurred, at not exceeding thirty miles an hour; that another ear driven by Luther Boyd was traveling along a road on the left of and leading into the LaFayette highway; that the driver of the latter ear, without looking in the direction of the bus and without slowing or stopping his car, which continued to run about twenty miles an hour, and without yielding to the defendant the right of way, as required by the Code, § 68-303 (g), entered the intersection and passed over to the right side of LaFayette highway; and that in a short interval the collision took place. It was testified by some that the left front hub of the defendant’s bus struck the rear right fender of the Luther Boyd car, and that thereupon the bus, which had for a few seconds been following it on the right shoulder of the road, ran down the embankment and turned over; and that at the time of the collision the defendant was attempting to pass Luther Boyd’s car on the right and get ahead of it. The defendant testified, that, relying on his right of way and assuming that the other ear would stop at the intersection and permit him to pass across the same, he made no effort to brake his bus in coming down the incline towards the intersection, traveling at a rate of speed which no witness testified was more Than thirty miles an hour,-but blew and continued to blow his horn while coasting; that when he discovered that the Luther Boyd car was entering the intersection, he put on his brakes and was struck by the other ear while he was attempting to avoid a collision by turning to the right; that to have, turned to the left would have caused the other car to strike him sooner; that his ear was equipped with good brakes, and at the intersection he might have been able
It is clear that as the defendant drove down the incline he was under no duty to so control his bus as to be able to stop suddenly and avoid striking the Luther Boyd car. He was under no duty to anticipate that Luther Boyd would violate the statute and fail, to yield the right of way, but had a right to rely to the contrary. When he perceived that the other car was in the act of entering the intersection, he could not legally endanger the person of the plaintiff by blindly and recklessly proceeding across the intersection, but owed to her the duty of exercising slight care or diligence which in the Code, § 105-203, is defined as “that degree of care which every man of common sense, howsoever inattentive he may be, exercises under the same or similar circumstances.” The absence of such care is termed gross negligence, and with that degree of negligence the defendant in the present case is charged by the plaintiff. There was testimony that the defendant, instead of putting on braises after reaching the intersection when the Luther Boyd car had entered, increased his speed and tried to pass the car on the right, and that the collision did not occur until a distance of about one hundred feet or more from the intersection had been traversed. The defendant testified that to have turned to the left would have brought the cars into contact sooner, and that the putting on of brakes might have endangered the safety of the occupants of the bus. We think, however, a jury question was presented as to whether or not the defendant failed to exercise slight care and was guilty of gross negligence, and that the court erred in granting a “nonsuit” on count 2 of the petition, or, in other words, withdrawing this feature of the case from the jury.
2. We do not think that the plaintiff successfully carried the burden of showing, under count 1 of the petition, that,on the occasion of her injury she was a passenger for hire. “A passenger is one who travels in some public conveyance by virtue of a contract, express or implied, with the carrier as to the payment of the fare or that which is accepted as an equivalent therefor.” Code, § 18-201. It is not shown by the evidence that she made any agreement, express or implied, with the defendant to transport her in the relationship of passenger and carrier. She paid nothing,
The court can not grant a partial nonsuit, as was held in Swain v. Macon Fire Insurance Co., 102 Ga. 96 (29 S. E. 147), Talbotton Railroad Co. v. Gibson, 106 Ga. 229, 237 (32 S. E. 151), Southern Railway Co. v. Hardin, 107 Ga. 379, 381 (33 S. E. 436); and Bearden v. Longino, 183 Ga. 819, 821 (190 S. E. 12). Under the law and the evidence in the present case, the court should have submitted to the jury the issue 'on gross negligence under count 2, and should have withdrawn from the consideration of the jury count 1, or, in other words, instructed them that there could be no recovery'- under that count. The judgment is reversed, with direction that the court, on retrial of this case, confine the issue to count 2 of the petition, the count based on gross negligence.
Judgment reversed, with direction.
Concurrence Opinion
I concur in the conclusion reached, as stated in the opinion of the court, that under the law and the evidence “the court should have submitted to the jury the issue on gross negligence under count 2” and therefore that the court erred in granting the so-called nonsuit as to this count. I also concur in the conclusion that the court did not err in ruling that the evidence was insufficient to authorize a verdict for the plaintiff under