Opinion
42844.
ARGUED JUNE 5, 1967.
DECIDED JUNE 12, 1967. REHEARING DENIED JULY 21, 1967.
Action for damages. Decatur Superior Court. Before Judge Culpepper.
Conger Conger, J. Willis Conger, for appellant.
Smith Cato, Ralph C. Smith, Jr., for appellees.
A verdict for the defendant was demanded and it was error to deny a motion for judgment n.o.v.
ARGUED JUNE 5, 1967 — DECIDED JUNE 12, 1967 — REHEARING DENIED JULY 21, 1967.
Joshua Mention's widow sued for the value of his life alleging that he had received fatal injuries while a guest in a car owned and operated by James C. King. Defendant contends the evidence disclosed that Mention was not a guest, because the trip (pushing a car belonging to Mention's nephew along the highway to get it started) was made at Mention's instance and with his active participation, that he was not in the exercise of ordinary care for his own safety, and that there was no proof that Mention's death was attributable to any injury which he may have received when King's car collided with a truck just after starting the nephew's car.
The proof disclosed that Mention and King had been working together as brick masons and had gone together to the job on the morning of the day when Mention was injured, only to find that the job was postponed because of rain. Returning, they went in King's car to Johnny Freeman's Cafe, where they saw Mention's nephew, George Landy. Landy informed them that his car, parked at home a short distance away, would not start and asked them to push it off. They went to Landy's home, but King demurred to the request to push the car because the front bumper of his car did not make proper contact with the rear bumper of Landy's. Mention then asked King to turn around and push it off with the back bumper. King did turn around, while Mention supervised the backing up and seeing that the bumpers "fit perfectly." Mention then got into the back seat of King's car and the pushing started. After pushing some distance and failing to get the Landy car started, King suggested that Landy had better get somebody to pull his car, but Mention importuned a further effort, urging "Come on, let's try a little further. It tried to crank." And the pushing proceeded.
Throughout the time King was at the wheel of his car, his girl friend, Eva Pearl Jolley, sat in the front to his right, and Josh Mention was in the back seat, while Landy was at the wheel of his own car. King placed Mention on the right side of the rear seat, behind Eva Pearl, while she placed him on the left behind King.
No other witnesses testified concerning Mention's conduct during the pushing operation, and while they varied as to details of how it was done, there was no conflict between them as to what Mention did — look back for traffic and to assist and direct King in staying on his side of the road while pushing the Landy car. He directed King at times to push a little faster. King asserted that Mention looked through the back glass at times, but because of its being fogged from the rain, cracked the back door and looked back, while Eva Pearl testified that he stuck his head out the window and looked back. King suggested a second time that Landy should get somebody else to push or pull his car, but Mention asked him to push more, saying "Well, push it on across the road and get him started. You know he's got to get started — out here in the rain like this." And the pushing went on until Landy's car did start, immediately after which the King car swerved over into the other lane and collided with an oncoming truck. The right rear door was open, and Mention was thrown onto the pavement, suffering a skull fracture. He was carried to a hospital, where some two weeks later he died from a stroke and congestive heart failure.
A verdict was returned for the plaintiff, and defendant King appeals from the denial of his motion for directed verdict (and subsequent motion for judgment n.o.v.) and the overruling of his motion for new trial.
The uncontradicted evidence discloses that the deceased not only took part in procuring the pushing of Landy's car, but that he actively assumed a joint control of the venture in that he directed the placing of the cars, back bumper to back bumper, watched up the highway as the pushing went on, "directing traffic" and instructing King as to what he should do and at what speed he should push.
In these circumstances it must follow that he was equally chargeable with King's negligence, barring a recovery by him for his injuries. Code §§ 105-603, 105-1803; Southern R. Co. v. Hogan, 131 Ga. 157 ( 62 S.E. 64). And compare Beasley v. Elder, 88 Ga. App. 419 ( 76 S.E.2d 849).
Judgment reversed with direction that the defendant King's motion for judgment n.o.v. be granted. Felton, C. J., and Hall, J., concur.