Opinion
27876.
DECIDED MARCH 15, 1940.
Damages; from Floyd superior court — Judge Porter. June 26, 1939.
John M. Slaton, Matthews, Owens Maddox, for plaintiff in error.
Leon Covington, Wright Willingham, Dean Covington, contra.
1. "If the driver of a car, from intoxication, is in a condition which renders him incapable of operating it with proper diligence and skill, and this is known or palpably apparent to one entering the car, that is a fact to be taken into consideration, along with the other facts in the case, in determining whether such person exercised ordinary care in entering or remaining therein." 12 Blashfield's Cyc. Automobile Law, 154, § 7874.
2. If an ordinarily prudent person would not have entered an automobile driven by a person known to be intoxicated or whose intoxicated condition is palpably apparent, it would be negligence for one to enter or to reenter the automobile, after having retired therefrom at a temporary stop on a continuous trip, and ride therein, and if the injury resulted from the failure of the driver to operate the car with proper care and skill because of his intoxicated condition, then the person riding therein could not recover under those conditions.
3. A guest or gratuitous passenger, however, is not negligent in riding with an intoxicated driver or one under the influence of intoxicating liquor, if he was unaware of such intoxication and no facts had been noticed by him which would arouse the suspicion of one ordinarily prudent in relation thereto. Also, in the instant case, if the jury should find that the defendant was intoxicated or under the influence of liquor, they should determine whether that fact was known to the plaintiff or that the defendant's intoxicated condition was so palpably apparent that it must have been known to him and liable to affect his operation of the car. They should then determine whether the plaintiff acted negligently in entering the car; or, in reentering it after a temporary stop or visit on a continuous trip (during which time the defendant took two or possibly three additional drinks); or, whether the plaintiff acted as a reasonably prudent person while in the car, without doing more than they found he did to have the defendant drive the car in a more reasonable or proper manner.
4. The petition and answer are to be read together in determining whether there is a variance between the allegations and the proof, and where the defendant's answer puts a new act of negligence (the defendant's act of negligence) in the case, the plaintiff is entitled to recover on the allegation thereof if sustained by proof.
5. Under the pleadings and the evidence in this case the court erred in refusing to give in charge to the jury certain instructions, duly requested, as follows (this issue not having been fully and clearly covered by the charge given): (a) "I charge you that if the guest in an automobile knows or in the exercise of ordinary care should have known that his host, the driver, is incompetent or careless or driving at a reckless and dangerous rate of speed, it is his duty to notify the driver of the peril, and if, after warning the driver of such carelessness and recklessness it may devolve upon him to insist that the driver shall stop the vehicle and allow him to alight, or take some other suitable action for his own protection." (b) "I charge you that one who knowingly and voluntarily takes a risk of injury to his person, the danger of which is so obvious that the act of taking such risk in and of itself amounts to a failure to exercise ordinary care and diligence for his own safety, can not hold another liable for damages for injuries thus occasioned."
6. The other requests to charge need modification, and the refusal of them was not reversible error.
7. The excerpts from the charge complained of do not require the grant of a new trial for the reasons urged.
8. If other errors were committed they are not of such character that they will likely recur on a second trial.
DECIDED MARCH 15, 1940.
William Harmon brought suit against Frank Mann for personal injuries alleged to have been caused by the defendant's negligence. The jury returned a verdict in favor of the plaintiff. To the overruling of his motion for new trial the defendant excepted.
It appears from the testimony of the plaintiff that he went to Augusta, Georgia, to see the Augusta master's golf tournament as the guest of the defendant in the defendant's automobile. The defendant "was paying the expenses of this trip going down there; I was to come back with Jennings Gordon and spent the night with him. I did not pay for anything on that trip down there. Mr. Mann bought the liquor. I did not drive the automobile at all on that occasion." The defendant picked him up out at the country club in Rome, Georgia, and they drank some liquor on the trip; each took his first drink just outside the Rome city limits. The next drinks were taken somewhere around Cartersville, Georgia, about twenty-five miles from Rome. The next were taken at Decatur, about fifty miles from Cartersville. He further testified: "We went on into Athens and spent an hour or a little over an hour there. I went into the University of Georgia Chi Phi House, a fraternity house at the school at Athens. I saw Mr. Buster Fahy. I stayed in that fraternity house of the college over there possibly an hour. I had a couple of drinks over there, or something like that and Mr. Mann had a couple too; I think that he possibly had one more than I did in the house. I knew he had more that I had, possibly a drink. I did not make any complaint to him about drinking. When we left Atlanta we went out through Decatur; then I believe you go through Winder; then beyond Winder there is a long four or five miles of straight stretch of concrete road. I remember how fast we were driving at that time, approximately ninety-four or ninety-five miles an hour. As to what was said at that time about the speed of the automobile, he was driving along there and he says, `I am going to see how fast this car will go,' and I says, `No, Mr. Mann, it will kill us both,' and he says, `I have bought brand-new puncture proof tubes and can't have a blowout,' and he says, `You watch the speedometer and I will watch the road,' and we were then making seventy-five miles an hour or more and he says, `I am going to get to ninety,' and he says, `I am going to get it up to one hundred,' and I says, `You will kill us both,' and he says, `I am going to get up to one hundred, as far as it will go,' and he says finally, `Is it one hundred?' and I says, `Yes,' but it was not. I was watching the speedometer while he was seeing how fast the automobile would go, I was asking him to slow down. He slowed down to fifty-five or sixty miles per hour and we drove all right." The accident occurred out from Athens, between Crawford, Georgia, and Washington, Georgia. He got back in the car in Athens and they started out. "When we left Athens, Mr. Mann was still driving. When we got outside of Athens there Mr. Mann started driving very, very fast, I would say fifty, sixty or seventy-five miles per hour." There were some red flags in the middle of the road just outside of Athens, and Mann was driving too fast to dodge and drove over one of the flags. "I remonstrated with him about his speed, I asked him to slow down. He slowed down at that time, but after he slowed down he picked back up. I would ask him to slow down, and he would slow down again. I do not recall how many times I made that request of him, several times after we passed Crawford. He continually got his speed up until shortly before this accident happened. Immediately before the accident occurred I would say he had gotten his speed up between eighty and ninety miles per hour. He was driving a Ford V-8, coupe, `37 model. The accident occurred on a slight curve to my right in the direction in which I was travelling. As he went into that curve he was driving between eighty and ninety miles per hour. . . As he cut that curve to the inside, he did not get off the pavement on the shoulder [which was wet from previous rains] on the inside, he went off on the outside, on the point of the curve on the left-hand side. When he got off on that soft shoulder he threw on his brakes and they began to scream and started going down the left-hand side of the road, and he hit a little drain running down from the pavement down the side of the embankment on the side of the road and that is the last I remember [until the ambulance came]."
Albert F. Fahy Jr. (Buster Fahy, whom the plaintiff testified they saw in Athens at the fraternity house) testified: "I talked to him in the house between forty-five minutes and an hour, something like that. Neither of them were drunk. I have driven automobiles. In my opinion I wouldn't think the drinking affected Mr. Mann's driving of the automobile. I had considered going down there with him, but I had some school work I had to do and I couldn't go; other than that I would have gone on to Augusta with them." On cross-examination he testified: "I know how many drinks of liquor they had there [at the fraternity house in Athens]; they had two apiece. Nobody else drank with them; just those two."
1. A guest or gratuitous passenger is not negligent in riding with an intoxicated driver or one under the influence of intoxicating liquors, if he is unaware of such intoxication, and no facts have been noticed by him which would arouse the suspicion of one of ordinary prudence in relation thereto. "Actual ascertainable intoxication is essential, and no contributory negligence in this connection can be asserted where, at the crucial time of undertaking or continuing the status of guest, the operator of the motor vehicle is not intoxicated to the knowledge of the guest, or to such extent that the latter is to be charged with knowledge, and where at the inception of the journey and during its early progress nothing in the driver's conduct betrays his being under the influence of liquor, the guest is not deemed at fault in intrusting himself in a vehicle under such driver's control." 4 Blashfield's Cyclopedia of Automobile Law and Practice, 250, § 2453. But, if the driver of a car, from intoxication, is in a condition which renders him incapable of operating it with proper diligence and skill, and this is known or palpably apparent to one entering the car, that is a fact to be taken into consideration along with the other facts in the case in determining whether such person exercised ordinary care in entering or remaining therein. If an ordinarily prudent person would not have entered an automobile driven by a person known to be intoxicated, or whose intoxication is palpably apparent, it would be negligent for one to so enter the automobile and ride therein, and, if injury resulted from the failure of the driver to operate the car with proper care and skill because of his intoxicated condition, then the person riding therein could not recover under those conditions. 2 Reid's Branson Instructions to Juries, 894 § 482.
Despite the validity of the rule that, in general, a driver's negligence is not imputable to a guest or passenger, the conduct of a passenger who rides or continues to ride in an automobile, despite knowledge or notice that the driver is intoxicated, establishes negligence upon his part, independent of the driver's negligence, which bars a recovery for injuries to which the driver's negligence, while so intoxicated, may have contributed. The guest, while at Athens (the last stop before the accident), and being aware of the driver's intoxication and of the possibility of injury, could not weigh the risks involved in the enterprise and then conclude to accept the dangers involved upon the supposition that he might, in case of an emergency, be able to take effective steps for his own safety. 4 Blashfield's Cyc. of Automobile Law and Practice, 248, § 2453. The primary duty of caring for the safety of the vehicle and those riding in it rests upon the driver. A mere gratuitous passenger is not guilty of contributory negligence, as a matter of law, until he in some way actively participates in the negligence of the driver, or is aware of the incompetence (intoxication) or carelessness of the driver, or knowing that the driver is not taking proper precautions while approaching a place of danger, fails to warn or admonish the driver. 2 Reid's Branson Instructions to Juries, 901, § 482.
In the instant case, one of the questions for the jury was whether the plaintiff failed to use ordinary care for his own safety in continuing to ride in the car as long as he did after learning or having an opportunity to learn as much as he did of the manner in which the defendant was driving. If the defendant drove the car in an ordinarily careful manner until the time of or near the time of the accident, and the plaintiff tried to prevail upon the defendant to cease his careless and dangerous driving, and there was no way for the plaintiff to leave the car or prevent such driving, then of course it can not be said that the plaintiff was lacking in ordinary care in continuing to ride. The plaintiff can be properly found to be lacking in ordinary care only in case the evidence shows that during the ride from Rome to Atlanta, to Decatur, to Athens, and thence to the point where the injury occurred, the defendant so drove the car as to make it palpably apparent that he was careless or reckless or incompetent, and, by his manner of driving, was endangering the occupants of the car, and only in case the plaintiff, as an ordinarily prudent person, ought to have refused to ride further or ought to have brought about a change in drivers at some time before the accident. 2 Reid's Branson Instructions to Juries, 910.
Among other things, the jury should determine whether the guest was negligent in reentering the car at Athens, Georgia, and, if in so reentering the car at Athens, after he knew the driver had taken five or six drinks and had engaged in reckless and dangerously excessive speed on that part of the trip before reaching Athens, he was using such care as an ordinarily prudent person would use in the same or similar circumstances, and whether, in so reentering the car in Athens, he thereby contributed to produce his own injury as a natural result, and that he ought reasonably to have anticipated some injury to himself as the result of continuing to ride under the circumstances; that is, whether he ought to have refused to reenter the car at Athens, or whether as an ordinarily prudent person he ought to have availed himself of this opportunity and refused to ride further.
2. The charge in this case was general, and covered the abstract principles of law that the plaintiff must exercise ordinary care, and if he knew that the defendant was intoxicated or was aware of his incompetency or carelessness in driving, or if in the exercise of ordinary care, taking into consideration all the circumstances in the case, he should have known such facts, the jury would be authorized to find that the guest could not recover. The judge charged the jury in part as follows: "I charge you further, gentlemen, that the duty on the part of the plaintiff, Mr. Harmon, to exercise ordinary care to avoid the consequences of the defendant's negligence, if he was negligent, does not arise until the negligence of the defendant is existing and is either apparent, or the circumstances are such that an ordinarily prudent person would have reason to apprehend its existence." (Italics ours.) In the latter part of his charge he said: "Of course, gentlemen, a passenger in an automobile riding with the driver of the automobile as a guest of the driver, if he acquiesces in a rash and imprudent and dangerous undertaking, he is presumed to assume the risk incident thereof, and can not afterwards complain if he is injured; but whether he acquiesced and voluntarily consented, or did what an ordinarily prudent man would or should have done under the circumstances, you as the jury will determine by your verdict." The defendant contended that because the charge was general in its nature, he requested a clearer, fairer, and more explicit instruction on a principle of law applicable to both the evidence and the pleadings. In Central Railroad v. Harris, 76 Ga. 501, 511, it is stated that although the charge may substantially embrace the rule of law on the issues between the parties which the evidence makes, yet, "if the charge be not full enough or clear enough or omits something that would put one side or the other more fairly before the jury than the charge given does, then the notice of the court must be called thereto." The phrase "more fairly" is synonymous with "more impartially." If the request goes more into a special feature of the case than the general charge, it must still be impartial and fair to the plaintiff as well as to the defendant. To illustrate: it must not express or intimate the court's opinion as to what has or has not been proved; nor must the court select a certain portion of the testimony and charge on it so as to give it undue prominence or render it argumentative, etc. "Fairer" does not mean that it presents the defendant's rights in the case to such an extent that it becomes partial to him, for the charge must not go beyond the center line of the case which divides and defines the plaintiff's and the defendant's rights; nor must it trespass upon the territory which supports and shields the rights of either of them. If it did, it could no longer be said to be fair or fairer. The defendant introduced no evidence, and under the evidence introduced by the plaintiff one of the most important and material questions of law relating to the defenses of the defendant was that pertaining to the plaintiff's independent negligence. Therefore, when the plaintiff testified that he warned the defendant of his excessive and dangerous speed before they reached Athens, that thereafter he got out of the defendant's car in Athens and had an opportunity to remain out of it, but, on the contrary, after having two more drinks of liquor (the defendant having possibly three, making a total of five or six drinks within a period of about five hours), reentered the defendant's car and continued the journey with the defendant and was injured in a wreck within fifteen minutes thereafter while traveling at a speed of eighty or ninety miles per hour around a slight curve, the particular rule of law applicable to the particular phase of the independent negligence (if any) of the plaintiff before he reentered the car and left Athens was very important and material to the defendant's defense. We think that under the pleadings and the evidence in this case, after the judge had charged the doctrine of last clear chance, to wit: "I charge you further, gentlemen, that the duty on the part of the plaintiff, Mr. Harmon, to exercise ordinary care to avoid the consequences of the defendant's negligence, if he was negligent, does not arise until the negligence of the defendant is existing and is either apparent, or the circumstances are such that an ordinarily prudent person would have reason to apprehend its existence," that when the defendant requested a more definite and clearer (therefore fairer) charge on the rule of law applicable to what would constitute independent negligence by the plaintiff on that phase of the trip between Rome and Athens, irrespective of any negligence that was existing or was apparent at the specific time after they had left Athens when the negligence of the defendant caused the wreck, the following rule relative to that phase of the case should have been given as duly requested (this issue not having been fully and clearly covered by the charge given): "I charge you that if the guest in an automobile knows or in the exercise of ordinary care should have known that his host, the driver, is incompetent or careless or driving at a reckless and dangerous rate of speed, it is his duty to notify the driver of the peril, and if, after warning the driver of such carelessness and recklessness it may devolve upon him to insist that the driver shall stop the vehicle and allow him to alight, or take some other suitable action for his own protection." In other words, we think it was a jury question whether a mere warning by the plaintiff of the fast and dangerous driving, under the circumstances which occurred between Winder and Athens, was sufficient to constitute ordinary care on plaintiff's part, or whether thereafter it devolved upon the plaintiff to alight from and not reenter the car in Athens, Georgia, or to take some other suitable action for his own protection and, upon request, the jury was entitled to a specific charge on this important phase of the defendant's case.
In view of the plaintiff's testimony that he reentered the car in Athens after knowing of the excessive and dangerous speed at which the defendant had been driving before reaching Athens, and knowing that the defendant had been drinking, even though the plaintiff had remonstrated with the driver before reaching Athens, it was a jury question as to whether the danger of riding with the defendant under these circumstances was obvious to the plaintiff at the time he reentered the car in Athens, and the following rule for determining the effect of the failure of the plaintiff (the passenger) to exercise ordinary care for his own safety was appropriate: "I charge you that one who knowingly and voluntarily takes a risk of injury to his person, the danger of which is so obvious that the act of taking such risk in and of itself amounts to a failure to exercise ordinary care and diligence for his own safety, can not hold another liable for damages for injuries thus occasioned." This quoted rule should have been given when duly requested as a clarification of the rule governing that phase of the case relating to obvious risks, this issue being clearly and fully covered by the charge given.
3. The defendant requested the court to charge as follows: "I charge you that the plaintiff can not recover on any negligence not alleged in his petition as negligence, and if you find that the proximate cause of accident was the drinking of intoxicating liquors on the part of Mr. Mann [the driver] you should find for the defendant, the plaintiff not having alleged this as a ground of negligence." The petition in this case was that of a guest riding in an automobile and was based upon the negligence of the owner and driver thereof. The intoxication of the driver was not one of the specific acts of negligence charged in the petition. However, the defendant's answer specifically alleged that the act of negligence which caused the injury (the wreck) was the intoxication of the driver and that the guest knew or had notice of it. In other words, the petition and the answer are to be read together in determining whether there is a variance between the allegations and the proof. Where the defendant's answer puts a new act of negligence (defendant's act of negligence) in the case, the plaintiff is entitled to recover on the allegations thereof if sustained by proof. Neal v. Ellison (Tex.Civ.App.), 273 S.W. 931; 49 C. J. 808.
4. Headnotes 6, 7, and 8 need no elaboration. The judge erred in overruling the motion for new trial.
Judgment reversed. Broyles, C. J., and Guerry, J., concur.