DECIDED NOVEMBER 20, 1948.
Damages; from Floyd City Court — Judge Kelly. September 21, 1948.
Graham Wright, Wright Scoggin, for plaintiff in error.
Maddox Maddox, contra.
In this action by a gratuitous invited guest against the owner of the automobile in which the guest was riding when injured, the allegations of the petition presented a jury question as to whether the driver was guilty of gross negligence, and the court did not err in overruling the defendant's demurrers.
DECIDED NOVEMBER 20, 1948.
W. M. Hardin filed suit against I. P. Hennon for damages for personal injuries alleged to have been received as the result of the wreck of the defendant's automobile while being driven by Jackie Young, the defendant's agent and servant, under the direction and control of the defendant and while the plaintiff was riding as a gratuitous invited guest therein. The defendant demurred to the petition both generally and specially, the plaintiff amended in certain particulars, and the court overruled the demurrers. The exception here is to that ruling.
The petition alleged that the automobile was being driven in an eastwardly direction along U.S. Highway 41 in Cobb County near the Chattahoochee River bridge, which highway is a 4-lane highway, that is, it is so constructed as to have two traffic lanes for each direction of travel, the lanes being separated in the center by a parkway, and that shortly before the highway reaches the bridge over the Chattahoochee River it curves to the north. Paragraph 9 alleged: "Petitioner shows further that said automobile of the defendant at said time when going around said curve was being driven at the high, illegal and dangerous rate of speed of approximately seventy (70) miles per hour, and while on said curve and being driven at said rate of speed, the driver and operator of said automobile attempted to pass an automobile going in the same direction, and said Jackie Young, driving said automobile to its left and around the other automobile, cut the automobile in which petitioner was riding back to its right to get back into the same traffic lane, and in so doing drove the right wheels of said automobile off of the pavement and onto the shoulder thereof, having lost control of the operation of said automobile, and when it was so driven onto said shoulder that the driver and operator attempted to turn said automobile back onto the paved portion of said highway but could not control the same on account of the terrific rate of speed at which it was traveling, and said automobile went into a depression and hollow on the side of the road, and as a result thereof your petitioner who was riding on the back seat of said automobile was thrown therefrom." The petition then set forth the injuries sustained and the losses suffered, and alleged in paragraph 18 that "Petitioner shows that the acts and facts herein alleged constituted and were gross negligence on the part of the said Jackie Young, and that the defendant herein would be liable for her acts of negligence." Petitioner added by amendment a paragraph as follows: "Petitioner shows that at the point and place complained of said highway curves approximately forty-five (45) degrees to the north and that said automobile went off of the highway at the apex of said curve, tearing through the guardrail on the west side thereof, knocking down two panels thereof; said guardrail being constructed with concrete posts inbedded in the ground to a metal fence."
The sole question presented by the demurrers and argued before this court is whether the petition as amended set forth a cause of action based upon the gross negligence of the defendant.
"`One riding by invitation and gratuitously in another's automobile can not recover for injury caused by the other's negligence in driving, unless it amounted to gross negligence.' Epps v. Parrish, 26 Ga. App. 399 ( 106 S.E. 297); Harris v. Reid, 30 Ga. App. 187 ( 117 S.E. 256); Peavy v. Peavy, 36 Ga. App. 202 ( 136 S.E. 96); Bolton v. Bluestein, 55 Ga. App. 782 ( 191 S.E. 388). Questions of negligence and diligence, even of gross negligence and slight diligence, being questions of fact and not of law, are as a rule to be determined by the jury. Rosenhoff v. Schaul, 42 Ga. App. 776, 779 ( 157 S.E. 215); Rowe v. Camp, 45 Ga. App. 794 ( 165 S.E. 894); Frye v. Pyron, 51 Ga. App. 613 ( 181 S.E. 142)." Atlantic Ice Coal Corp. v. Newlin, 56 Ga. App. 428 ( 192 S.E. 915). See also Barbre v. Scott, 75 Ga. App. 524 ( 43 S.E.2d 760). "In general, slight diligence is 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." Code, § 105-203.
While this court recognizes the rule that a violation of the speed laws alone would not in and of itself constitute gross negligence ( Peavy v. Peavy, 36 Ga. App. 202, 136 S.E. 96), and that the violation of a State law by the driver of an automobile does not necessarily amount to gross negligence ( Hopkins v. Sipe, 58 Ga. App. 511, 199 S.E. 246), we can not say as a matter of law that one driving an automobile 70 miles per hour, around a 45 degree curve, and attempting to pass another automobile on such curve, is not guilty of gross negligence. This would be a question for the jury. In Moore v. Bryan, 52 Ga. App. 272, 282 ( 183 S.E. 117), Judge Sutton, speaking for this court said: "While simply operating an automobile in violation of the speed laws would not necessarily as a matter of law be gross negligence, still an automobile can be operated in such a manner and at such an excessive and dangerous rate of speed, say 70 miles an hour, as to be out of control of the driver, and under the circumstances of the particular case, to present a jury question as to whether or not the driver was guilty of gross negligence." Gross negligence does not amount to wilful and wanton disregard for the rights of others ( Lee v. Lott, 50 Ga. App. 39, 177 S.E. 92), and we think that one may be guilty of gross negligence and still be in the exercise of some degree of care.
Under the view we take of this case it comes within the well-settled rule that ordinarily questions of negligence and diligence, including gross negligence and slight diligence, are questions of fact and not of law; and the court did not err in overruling the demurrers.
Judgment affirmed. Sutton, C. J., and Felton, J., concur.