Opinion
42251.
ARGUED SEPTEMBER 13, 1966.
DECIDED SEPTEMBER 29, 1966.
Action for damages. Bartow Superior Court. Before Judge Davis.
McCamy, Minor, Vining Phillips, Carlton McCamy, for appellants.
Pittman Kinney, L. Hugh Kemp, Jr., Cullens Lancaster, J. R. Cullens, David N. Vaughan, for appellee.
1. The motion for judgment notwithstanding the verdict was properly overruled.
2. It was error to instruct the jury, in a case where the appellant owed a duty of ordinary care toward the plaintiff, that the jury, if it found the defendants jointly negligent, should not concern itself with the degree of negligence involved.
ARGUED SEPTEMBER 13, 1966 — DECIDED SEPTEMBER 29, 1966.
Jerre McKenzie obtained his father's 1955 Pontiac and set out with his friend, the defendant Frank Edwards, driving north on U.S. Highway 41. The two boys had agreed to share the gasoline and expenses of the trip and in fact did so. McKenzie, after driving for some distance, vacated the driver's seat to Frank Edwards and went to sleep in the car. Shortly after dark Edwards was driving north in a line of traffic when a 1957 Ford automobile driven by the defendant Jerry Edwards passed him, placing the Ford between the plaintiff's Pontiac and the lead car driven by Knowles. Jerry Cleveland Edwards then turned into the left lane for the purpose of passing Knowles and collided head on with a south-bound 1959 Chevrolet driven by the defendant Roger Parrott. Parrott's car spun around in the road and entered the north-bound lane of traffic where the McKenzie car collided with it, severely injuring the plaintiff. On the trial of the case a verdict was directed in favor of the defendant Parrott, and the jury found for the plaintiff against the defendants Jerry Cleveland Edwards and Frank Edwards. Frank Edwards, the sole appellant, complains of the rulings of the trial court overruling his motion for judgment notwithstanding the verdict and his motion for a new trial on certain special grounds.
1. The law is now well settled in this State that where two people enter into an agreement to make a trip for their joint pleasure or benefit, where they share the expenses and take turns in driving the vehicle, the standard of care owed by the driver to the occupant, whether the occupant be the owner of the vehicle or whether he was in the first instance the person invited to accompany the owner or person in charge of the car, is ordinary care. Fountain v. Tidwell, 92 Ga. App. 199 ( 88 S.E.2d 486); Morris v. Cochran, 98 Ga. App. 786 ( 106 S.E.2d 836). Frank Edwards, who had agreed to and did share the expenses of the trip with Jerre McKenzie, the plaintiff, and who had taken over the driving when McKenzie indicated his intention of relinquishing the wheel in order to rest, would be liable to the latter for ordinary negligence, and the only question presented by the motion for judgment notwithstanding the verdict is whether the evidence demands a finding that he was not negligent in any particular. "Where a motion for judgment non obstante veredicto is denied, an appellate court must affirm the trial court if there is any issue to be submitted to the jury and any evidence to sustain the verdict." Massachusetts Bonding c. Co. v. Bins c. Co., 100 Ga. App. 847 ( 112 S.E.2d 626). Some of the acts of negligence charged against the driver of the automobile in which the plaintiff was riding were that he was guilty of negligence per se in exceeding the speed limit and that he was negligent "in increasing his speed when the defendant, Jerry Cleveland Edwards, pulled his 1957 Ford out to pass, so as to prevent the said 1957 Ford from re-entering the north-bound lane of traffic in time to prevent colliding with the 1959 Chevrolet being driven by the defendant Roger Duane Parrott, and the resulting collision and damages." The defendant himself testified that when he was driving it was after sundown and his lights were on, and that he was driving around 50 or 55 miles per hour. The speed limit being 50 miles per hour, this created an issue as to whether this defendant was exceeding it and whether, if so, this act might enter into the proximate cause of the wreck. Where the plaintiff's own testimony is vague or equivocal, it must be construed against him. Steele v. Central of Ga. R. Co., 123 Ga. 237 ( 51 S.E. 438). Assuming, then, that the jury would have been authorized to find his speed a violation of law, could this have been a part of the proximate cause when the driver of the passing car struck Parrott's Chevrolet and hurled it directly into his path? On this question Jerry Edwards testified: "I couldn't get back in on my lane. The Pontiac had me blocked there. I was going north and this is the other car and this is the Pontiac, and I pulled out to pass like this and this one [Frank Edwards], he come on up so as I couldn't get back in my lane after I got out of my lane." Q. "Well, did he close up this gap between here?" A. "He closed it so I couldn't get in. . ." Q. "Was there anything there to keep him from seeing what was happening in front of y'all? A. "Well, there wasn't nothing blocking the road or nothing in the road and on each shoulder." Q. "If he had not pulled up, could you have pulled back to avoided this?" A. "Yes, sir. I believe I could, because I just had got out in the passing lane good, I'd say maybe along there. I just had got out when I seen the car and then when I saw I couldn't get back over here, I had time to get nearly off the road." Q. "As you started to pass the Knowles car, is there any doubt in your mind that Frank Richard Edwards closed this gap and prevented you from pulling back in?" A. "He pulled up there so I could not get back in. I would not have stayed out if I could have got back in." Q. "Did you ever see any indication that he applied his brakes or slowed down or reduced his speed in any way at all?" A. "No, sir."
According to this testimony, then, the collision would have been avoided if Frank Edwards had not speeded up immediately behind the Knowles automobile and prevented Jerry Edwards from returning to his right-hand side of the road when he realized that the way ahead of him was blocked by the oncoming Parrott car. There was nothing to prevent the defendant from seeing this situation and slowing down enough to let the Ford back into its proper lane of traffic. While the primary negligence was chargeable to the driver of the passing car, and while a driver who is himself not negligent is ordinarily not required to foresee that others may be, so as to avoid their negligence if it occurs, one who is himself violating traffic regulations has a duty to anticipate that others may do likewise. Williams v. Grier, 196 Ga. 327 ( 26 S.E.2d 698). Under the circumstances the jury might also have found that this defendant was following too closely, that this act prevented Jerry Edwards from returning to his own right side of the road, and that both of these acts concurred to cause the plaintiff's injuries. The motion for judgment notwithstanding the verdict was properly overruled.
2. The court charged: "In order for these defendants to be jointly liable, you must find there were joint and concurrent acts of negligence, and that the negligence of each driver concurring with the other produced the event. Now, there may be different degrees of negligence attached as you may see the evidence in this case, but that would make no difference as to whether one were slight and the other was ordinary, or whether one was gross and the other was ordinary, so long as these acts were joint and concurrent on the part of each defendant." This instruction was of course error because it instructed the jury that if even slight negligence on the part of one or more of the defendants combined to cause the injury each would be liable. It apparently did confuse the jury for they returned and the foreman requested a repetition of the charge on "whether it were slight or major," to which the judge responded by repeating the erroneous instructions. The appellant owed no duty to exercise extraordinary care toward the plaintiff, but from the repetition of this charge the jury might have concluded that he should be liable although his negligence was slight. This error makes necessary the grant of a new trial.
Judgment reversed. Nichols, P. J., and Hall, J., concur.