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WERBELL v. WALTERS.
36002.
Damages. Before Judge Manning. Cobb Superior Court. October 4, 1955.
QUILLIAN, J.
The evidence did not demand a verdict for the defendant, and the court properly overruled the motion for a judgment notwithstanding the verdict.
Miss Lucile Walters filed a suit against Mitchell L. Werbell in the Superior Court of Cobb County to recover damages for certain personal injuries sustained by her while riding as a gratuitous guest in his automobile. The petition alleged that on May 29, 1954, the plaintiff was employed as a hostess-stenographer in Dale's Cellar Restaurant in the City of Atlanta; that on the evening of that day the defendant came to Dale's Restaurant in company with friends for late supper; that about midnight the defendant invited the plaintiff to accompany him and others in his party to a party which was being planned by some of the group present on that occasion; the plaintiff accepted the invitation and agreed to go with the defendant; that the plaintiff did not know exactly where the party was to be except that it was to be held somewhere in the northwest section of the City of Atlanta; for the purpose of going from the restaurant to the party the plaintiff entered the defendant's 1952 Jaguar convertible automobile as his guest; the automobile proceeded out Peachtree Road toward Buckhead to the area of Andrews Drive between the intersection of Peachtree Road and Chatham Road within the corporate limits of the City of Atlanta. A valid and subsisting ordinance of the City of Atlanta was in force on the date of the occurrence alleged in the petition which ordinance read: "The Atlanta City Code, 1953--Sec. 30.60. Speed zones generally--Designated; maximum speed permitted. Except as otherwise specifically provided in this chapter or by ordinance, the city shall be divided into two speed zones. The inner zone shall consist of the area included within a circle, whose radius is two and one-half miles centered on the intersection of Peachtree Street and Marietta Street at Five Points. The outer zone shall consist of all the area of the city except the area included within the inner zone. It shall be unlawful for any person to drive a motor vehicle within the inner zone at a rate of speed in excess of twenty-five miles per hour nor within the outer zone at a rate of speed in excess of thirty-five miles per hour unless a higher rate of speed has been specifically authorized for the particular street by this chapter or an appropriate ordinance."
The petition contained the further averment, that, when the defendant reached the intersection of Peachtree Road and Andrews Drive in the City of Atlanta, he accelerated speed of the automobile and turned a northwesterly direction off Peachtree Road onto Andrews Drive; the defendant continued to rapidly accelerate the speed of the automobile until it exceeded fifty to sixty miles per hour; as the defendant increased the speed of his automobile the plaintiff requested and urged him repeatedly to slow down and to operate the vehicle more carefully; the defendant continued to drive at the high and excessive rate of speed in disregard of the plaintiff's remonstrance; the defendant was familiar with the curves on Andrews Drive between the intersection of Andrews Drive and Peachtree Road and Andrews Drive and Chatham Road, as he had traveled the road on previous occasions; at approximately one-half mile northwest of the intersection of Peachtree Road and Andrews Drive, the road takes a sharp downgrade curve or turn to the left in a westerly direction; the defendant knew the curve and that it was dangerous to attempt to traverse the curve at the high rate of speed he was then traveling of 50 to 60 miles per hour; the defendant did attempt to round the curve, lost control of the automobile and allowed it to slide off the northwestern side of the roadway over a seven-inch granite curb and into a wooded area adjacent to the road; that the automobile after hurdling over the curb and traveling 192 feet off the road struck and demolished a granite wall located at the driveway to Governor Slaton's home; after colliding with the wall, the automobile changed the direction of travel and proceeded in a southerly direction across Andrews Drive and struck a utility pole located at the south curb of Andrews Drive; the plaintiff was thrown from the automobile when it struck the granite wall at the entrance to Governor Slaton's home and sustained enumerated painful and permanent injuries. The petition contained averments as to expenses incurred by the plaintiff incident to treatment of her injuries, and other allegations in reference to loss of her earning capacity. The specific acts of the plaintiff which the petition alleged constituted gross negligence were: "(a) In operating his Jaguar sports convertible at a high and excessive rate of speed, to wit, approximately 50 to 60 miles per hour in violation of Section 30.60 of the City Code of Atlanta, such violation amounting to negligence per se. (b) In failing to maintain control of the said automobile as it traversed the curve hereinabove described which was known to the defendant to be a severe and dangerous curve. (c) In failing to reduce the speed of his automobile as he approached and entered the said curve in violation of the laws of the State of Georgia. (d) In failing to maintain a proper lookout so as to observe the presence and extent of the said curve, so as to avoid operating his automobile off of the road and into the brick wall and utility pole described hereinabove. (e) In allowing his automobile to swerve off of the road in the manner hereinbefore set forth. (f) In failing to apply the brakes of his automobile so as to maintain control of the vehicle and operate it safely around the curve herein above described."
The petition prayed recovery in the sum of $38,000. The defendant filed an answer in which all of the allegations of the petition except those relating to the jurisdiction of the court and the existence of the ordinance of the City of Atlanta were denied.
The testimony of the plaintiff, sworn in her own behalf, furnished proof of the material allegations of the petition. She did not testify that she warned the defendant of his speed or protested that manner of his driving as set out in the petition. She estimated the speed of the defendant's automobile as it proceeded from the location of the restaurant on Peachtree and Ivy Streets to Andrews Drive to be sixty miles per hour, and that the trip with time allowed for other members of the party traveling in separate vehicles to catch up and stops for signal lights to have consumed about five minutes (this distance was shown by other evidence to be about 3 or 4 miles). She admitted that considering the occurrence in retrospect, the defendant's speed was too great and that she should have asked to get out of the automobile. She also admitted having testified in answer to questions previously propounded to her when depositions were taken that the defendant drove out Peachtree to Andrews Drive at from 60 to 80 miles per hour. But she gave as her best estimate of his speed at the time she was testifying on the trial that the speed at which he drove from the restaurant to Andrews Drive was sixty miles per hour. In this connection she further related that the hour was late, it being twelve o'clock at night when the trip was begun. She testified that after reaching Andrews Drive the defendant did increase the speed of the automobile rapidly and undertook to negotiate the curve at a speed of about sixty miles per hour. The wreck occurred, according to her testimony, about one-half mile after the automobile turned from Peachtree Street into Andrews Drive and after the defendant accelerated his speed.
The defendant testified: That he owned a Jaguar convertible automobile of light chassis and body and of 150 horse power; that at about midnight of May 29, 1954, he invited the plaintiff to a party; that he undertook to convey her to the party in the described automobile; that he rounded a curve on Andrews Drive in the City of Atlanta traveling at a speed that he found impossible to estimate; that on a previous occasion he believed he had testified that the speed of the automobile was forty-five miles per hour and that it possibly was in the range of forty-five miles per hour; that on the curve the curb was six to eight inches high and was not so one could conveniently drive over it; that he was looking at the road and was trying to pull to the right as he rounded the curve, but that frankly he did not look at the curb; that at the time his automobile went off the curb it was about twelve o'clock midnight; that he did not know how far the automobile traveled after it went off the curb; that a policeman measured the distance and that according to him it was some 170 feet or more from the point where he left the curb and the final point of impact where the automobile side-swiped a granite wall at the entrance of the Slaton home; that his automobile damaged the wall considerably; that Andrews Drive is 25 to 30 feet wide; that after striking the wall his automobile continued to travel 20 to 25 feet under its power; that at the time of contact with the wall his foot was on the brakes and the automobile was traveling in third gear; that he put the power on trying to avoid the wall and turned to the left; that is he stepped on the gas and swung the car to prevent striking the wall head-on; that he had lost control of the car for a few seconds and was at the time fighting to regain it; the plaintiff did not do anything to interfere with his driving; nor anything that had anything to do with the collision; that there was nothing she could do to interfere with the driving or operation of the automobile in any way; that he had driven around the curve many times and knew that it was a double down-grade curve to the left, an ordinary sharp curve that may be driven around with care, but was not anything like a ninety-degree curve, though the witness had no idea as to what degree curve it was.
A. L. Ellsberry, a city policeman, testified on direct examination, that from certain physical facts recounted by him his estimate of the plaintiff's speed at the time he veered from the roadway on Andrews Drive, and on cross-examination from the same circumstances gave as his opinion that the speed of the vehicle was thirty-five miles per hour when it struck the wall at the entrance of the Slaton home. He stated measurements as to the distance the automobile traveled after leaving the roadway and after striking the wall which substantially coincided with those stated by the plaintiff. The officer also testified that the defendant did not during his investigation of the case state anything about having turned his automobile to the right to avoid an oncoming vehicle.
R. S. Powell, a witness for the defendant testified: He lived in North Carolina but on the evening of May 29, 1954, he was in Atlanta and accompanied the defendant to Dale's Cellar Restaurant. The time of their arrival at the restaurant was about seven or eight o'clock. The witness related that he, the defendant, and Mr. Provost ate dinner at the restaurant and remained there until about 11 o'clock; when they left he rode with Mr. Provost, and Miss Waters, the plaintiff, rode in the car of the defendant Werbell; the destination of the party was the home of Dunton Whitehead; neither the witness nor Provost knew the way to the Whitehead home, and followed the defendant as was arranged between the parties; that the defendant's speed was thirty to thirty-five miles per hour; the witness was sure of this fact for reasons stated by him; that the defendant's car periodically was out of the witness's sight but not for long, in fact for only a matter of seconds; after the wreck occurred the witness came to the scene, found the plaintiff on the pavement and the defendant just arising from the roadway; the plaintiff complained of certain injuries; the witness further testified that as he approached the scene of the collision or wreck, he met an automobile coming around the curve with its bright lights on, which automobile appeared to be exceeding the speed limit. On cross-examination he stated that this automobile in no way endangered the progress of the automobile in which he was riding. The witness was positive that the defendant was not intoxicated, and did not recall him drinking at the restaurant. The witness further stated that he did not know that the defendant had stopped along the route to allow the automobile in which he was riding to catch up; he also denied that the plaintiff appeared to be injured to any extent that could be observed by a layman. The witness finally testified that aside from the fact that the automobile in which he was riding was able to follow the defendant's automobile along the route to the Whitehead house and the fact that Provost, with whom he was riding, was traveling at a comparatively moderate speed, he had no direct knowledge of the speed the defendant Werbell's car was driving at the particular time (evidently referring to the time when the wreck occurred) and that he had no direct knowledge of what speed the defendant's automobile was traveling immediately prior to the accident in which it was involved.
Mitchell L. Werbell, recalled, testified that he arrived at the restaurant early in the evening; he further testified that his automobile was in front of the restaurant on Peachtree immediately before the trip was begun; the plaintiff came to the automobile with a glass in her hand and was still drinking when he got into the automobile; he traveled directly out Peachtree Road, which angles off to the left; he stopped along the way because there were a great number of signal lights going out Peachtree Street; he also related that when he got past the signal lights that the automobile in which Provost and Powell were riding was halted by the lights, he stopped and waited for them; he was an experienced driver having operated automobiles of the type he was then driving for eighteen years. the witness testified that he could not tell the jury the speed at which he went out Peachtree Road, or whether he was traveling 25 or 35 miles per hour, but that the speed at which he was traveling was proper for the occasion and was not excessive. He emphasized that there were many places on Peachtree to check speed. He denied that at any time he drove at 60 miles per hour. The witness then gave an account of what occurred just before he lost control of his automobile in some respects similar to that given by him on his initial testimony, but with certain defensive elements not previously related by him. This account was in the following language: "Q. Now what occurred just immediately before the accident, and what in your opinion caused the accident? A. Well, it is really a little difficult to say, because I find that after something like this occurs you have a fair mental picture of what happens exactly. To the best of my recollection we were proceeding on there, there was a second car behind us, and when I got close to that turn I did know what it was, and I wasn't making an extensive speed, for I didn't feel like I could go around there; I have driven that turn many, many times and knew that you couldn't do it very fast. And I saw lights coming from the opposite direction and I assumed the car was on its natural lane and would pass as he should. And when we came in to the turn I saw that the car or felt that the car was over on my lane, and I pulled sharply to the right, not actually expecting to go into the woods and possibly I got on that soft shoulder of the roadway there, assuming that the lights were coming on my side of the roads which I believed they were. Q. Tell the jury what occurred then? A. My wheel was twisted in my
hand to the left. I didn't know what caused that at the time, but I know that we tried to pass them, that they were on the road on the right, and I immediately tried to brake down and reduce the speed. As a matter of fact I was not trying to stop, I was trying to get down to 10 or 15 miles an hour. And on my left there was a large telegraph pole three and a half or four feet from this curb, and I believe I hit that curb with my front right wheel which started my car in a spin, and I dropped down into third gear, and then I stepped on the gas in an attempt to correct my skid. And by this time we were upon this granite ornament, and I did crack that and it swung to the right and I was back on the soft road, and after hitting this pile of rocks it spun my wheel very sharply to the left, and we were in this little graveled place there, I think the officer testified there is a little graveled road that goes up between these two piles of stone, and I started to get out, and I don't believe I ever hit the telegraph pole, I don't see how I could have, for there was no damage to the front of my car, the only damage to my best recollection was the right front wheel where it first hit the pillars, or the second one, I don't know just where it was, but we didn't hit the telegraph pole across the street."
The witness further testified that the speed at which he was traveling when he saw the lights of the approaching automobile was he "would say 35 or 37 miles per hour, or possibly more," that he could not say accurately what his speed was. He admitted that he had previously testified that he was traveling at 45 miles per hour when his automobile left the paved portion of the roadway. He then reiterated his avowal that he was unable to say how fast he was driving.
Edward A. Provost, sworn as a witness for the defendant, in his testimony substantially corroborated that of the witness Powell. He testified that never at any time did he lose sight of the defendant's automobile until just prior to its being wrecked, and got to the locus of the wreck within five or six seconds after it occurred.
There was a mass of evidence both verbal and documentary in reference to phases of the case not concerned in the decision of the case.
At the conclusion of the evidence the defendant's counsel moved the court for a directed verdict in favor of the defendant on the grounds: "The defendant at the conclusion of all the evidence moves the court to direct a verdict in his favor upon these grounds: First, there is not sufficient competent evidence in the record to show that the defendant violated any duty which he owed to the plaintiff as a guest passenger in his car. And, secondly: The uncontradicted evidence shows that the plaintiff by the exercise of ordinary care could have avoided any injury she may have sustained by staying away, or getting out of the way, or going away from a probable or known danger."
The trial judge overruled the motion. The jury returned a verdict for the plaintiff. The defendant filed a motion for judgment notwithstanding the verdict, which motion was in the following language: "During the trial of this case and at the close of all the evidence defendant, Mitchell L. Werbell, moved the court to direct a verdict in his favor because: 1. The evidence was not sufficient to show that defendant had violated any duty which he owed the plaintiff. 2. The evidence in the case demanded a finding that the defendant had not violated any duty which he owed the plaintiff and that no gross negligence on his part contributed to or caused injuries sued for. 3. The evidence in the case, and particularly the evidence of plaintiff, shows that by the exercise of ordinary care plaintiff could have avoided any injuries which she may have sustained and that as a matter of law the plaintiff was not entitled to recover. 4. The court overruled the motion of the defendant for a directed verdict in his favor and thereafter the jury returned a verdict in favor of the plaintiff and against the defendant in the sum of $6,450. And now within the time and manner provided by law comer the defendant, Mitchell L. Werbell, and presents this his motion for a judgment and moves the court to set aside the verdict of the jury and to enter judgment in his favor in accordance with his motion for directed verdict. Wherefore, the defendant prays a judgment in his favor in Accordance with his motion for a directed verdict."
This motion was overruled and the defendant excepted.
1. The motion for judgment notwithstanding the verdict alleged that the defendant had made a motion for a directed verdict on the grounds: "First, there is not sufficient competent evidence in the record to show that the defendant violated any duty which he owed to the plaintiff as a guest passenger in his car. And, secondly: The uncontradicted evidence shows that the plaintiff by the exercise of ordinary care could have avoided any injury she may have sustained by staying away, or getting out of the way, or going away from a probable or known danger."
The motion further alleged that the court overruled the motion for directed verdict, that the jury returned a verdict in favor of the plaintiff, and prayed that the verdict be set aside and a judgment entered in the defendant's favor in accordance with the motion for directed verdict.
The motion like any other pleading merely presented the defendant's contentions to the court and prayed for the relief that the defendant asserted he was entitled to if the allegations of the motion were established by proof. The relief was, of course, that the verdict be set aside and a judgment be entered in the defendant's favor in accordance with the motion for directed verdict.
The conclusive proof of whether the defendant had actually made the motion for directed verdict, and that it was made upon the grounds alleged in the motion for judgment not withstanding the verdict was the motion for directed verdict itself, which appears in the record.
The motion for directed verdict serves as proof of the allegation of the motion for judgment notwithstanding the verdict that the former motion was made on the grounds that the evidence was not sufficient to show that the defendant violated any duty which he owed plaintiff, and that the evidence demanded a finding to the contrary. It will be noticed from a comparison with the first ground of the motion for judgment notwithstanding the verdict quoted in the foregoing statement of facts, with the first and second paragraphs of the motion for directed verdict which appear in this opinion, that the ground of the motion for directed verdict referred to is a virtual, if not literal, embodiment of the first and second paragraphs of the latter motion.
However, the third paragraph of the motion for judgment notwithstanding the verdict does not comport with any ground of the motion for directed verdict, and there is no proof in the record that motion for directed verdict was in fact made on that ground.
There is a ground of the motion for directed verdict, its second ground, that is somewhat similar to that referred to in the third paragraph of the motion for judgment notwithstanding the verdict, but not only is it couched in different language, but it is of entirely different import from the ground upon which the motion for directed verdict is alleged in paragraph three of the final motion to have been made.
So that the first question of law that is presented for the consideration of this court is whether the evidence demanded a finding that the defendant failed in no duty owed the plaintiff, that is whether the evidence considered as a whole indisputably shows that he neither injured the plaintiff by wilful misconduct or by failing to exercise slight care for her protection while she was riding as a guest in his automobile. Of course, the failure to exercise slight care is what our law defines as gross negligence.
It may be that there is no other question properly before the court since there was no proof of the third paragraph of the motion for judgment notwithstanding the verdict, which paragraph is the only paragraph except paragraphs one and -two of the motion heretofore referred to which undertakes to present any question for determination here.
But if very liberal construction be placed upon paragraph three of the motion so that it may be taken as at least attempting to allege that the motion for directed verdict was made upon the second ground of the motion for directed verdict as it appears from the record, the question for our determination would be whether the evidence demanded a finding in accord with the second ground of the motion for a directed verdict, which ground for the sake of continuity we repeat. "And, secondly: The uncontradicted evidence shows that the plaintiff by the exercise of ordinary care could have avoided any injury she may have sustained by staying away, or getting out of the way, or going away from a probable or known danger."
But it will be observed that according to the peculiar wording of the ground, it did not raise the question as to whether the factual situation revealed by the evidence disclosed a failure on thee part of the plaintiff to exercise ordinary care to avoid the negligence of the defendant, but simply presented the very narrow question as to whether the proof produced upon the trial showed that she failed to exercise such care by omitting to employ a particular prudential measure in averting the danger to which the defendant's negligence exposed her; that prudential measure being that the plaintiff to have escaped the hazard to which the defendant's driving exposed her, should have stayed out of the automobile in the first instance, or when the danger became apparent have left his automobile.
The venerable and familiar rule is that except in plain and indisputable cases where reasonable men could not entertain opposite views of the matter, the questions of whether the host's conduct is negligence, the classification of his negligence as slight, ordinary, or gross and whether his negligence was the proximate cause of the plaintiff's injuries are questions for the jury. Eubanks v. Akridge, 91 Ga. App. 243 (85 S. E. 2d 502); Georgia Power Co. v. Blum, 80 Ga. App. 618 (2) (57 S. E. 2d 18); West v. Rosenberg, 44 Ga. App. 211 (160 S. E. 808).
A cursory reading of the foregoing statement of facts discloses that there was ample evidence, applying to the rule just referred to in the preceding paragraph, to present issues for the jury as to whether the defendant host in this case was guilty of gross negligence and whether his negligence was the proximate cause of the plaintiff's injuries.
The plaintiff's proof in conflict with the defendant's evidence to the contrary created an issue as to whether the defendant undertook to traverse a rather sharp double down-grade curve with which he was familiar at an unlawful speed so great that it caused him to lose control of his automobile, in consequence of which conduct the vehicle struck and demolished or greatly damaged a stone wall and then collided with a telegraph pole, and that the plaintiff was injured by these collisions. The plaintiff's evidence if believed by the jury, as it evidently was, was sufficient to support a finding that the defendant's acts of gross negligence proximately caused the injuries she sustained.
The question of whether the plaintiff in a given case exercises ordinary care to prevent being injured by the negligence of another is also, under the familiar rule before referred to, for the jury, except where the evidence adduced upon the trial points to and permits only one logical conclusion. Taylor v. Morgan, 54 Ga. App. 426 (188 S. E. 44); Smith v. American Oil Co., 77 Ga. App. 463 (49 S. E. 2d 90); Crane Auto Parts v. Patterson, 90 Ga. App. 257 (82 S. E. 2d 666); Britt v. Davis, 53 Ga. App. 783 (187 S. E. 125).
Of course, the same rule would apply to a case such as than we now review where the contention is not only that the plaintiff should have done some act to avoid the apparent danger to which she was exposed, but should have done some specific thing to escape such peril. The evidence in the instant case does not so conclusively prove that the plaintiff failed to exercise ordinary care to avoid the consequences of the defendant's negligence that reasonable minds might not differ on that score, and certain it is that the proof as a whole did not demand a finding that she was under such duty to have stayed out of the plaintiff's automobile, or to have gotten out of it, that a failure to follow that particular course or conduct barred her recovery.
The evidence, it will be recalled, showed that the speed at which the plaintiff was traveling was according to the plaintiff 60 miles per hour and as estimated by the defendant and his witnesses 35 miles per hour. All witnesses agreed that the hour was late; that the defendant stopped in obedience to traffic signals and was driving at about the same speed as the rest of the party until he reached Andrews Drive. Certainly, this was some evidence from which the jury were warranted to conclude that up to that point there was nothing in the speed or manner of his driving to cause the plaintiff such apprehension of impending danger as would have required that any prudential measure to advert danger be employed by her. After reaching Andrews Drive the plaintiff testified that the defendant suddenly accelerated his speed and in a short distance thereafter lost control of the automobile. She was certainly under no duty to take any steps to avoid the consequence of his negligence until it became apparent or by the exercise of ordinary care should have become apparent to her. Shermer v. Crowe, 53 Ga. App. 418 (186 S. E. 224); Allgood v. Butler, 88 Ga. App. 231 ( 76 S. E. 2d 437); Bryant v. Atlantic Coast Line R. Co., 62 Ga. App. 801 (10 S. E. 2d 141); Whatley v. Henry, 65 Ga. App. 668 (16 S. E. 2d 214).
The evidence did not demand that the plaintiff suddenly confronted with the peril created by the defendant's negligence had time or opportunity to have avoided that danger under the rule referred to in the preceding paragraph.
We have read with interest the cases relied upon by the defendant, plaintiff in error here. In those cases is found the pronouncement of the recognized rules applicable to negligence cases generally.
In Wilson v. Harrell, 87 Ga. App. 793 (75 S. E. 2d 436) it is held among other things, just as we hold in this case, that ordinarily it is a question for the jury as to whether under factual circumstances revealed by the evidence the guest passenger is under the duty to take steps to prevent injury to which the negligence of his hosts exposes him, and just what measures he should employ in that behalf.
It is interesting to note that in none of the cases relied on by the defendant except Beasley v. Elder, 88 Ga. App. 419 (76 S. E. 2d 849), was the case withdrawn from the jury or a verdict directed. In that case, the facts being dissimilar to the case at bar, a person placed himself in a position of obvious peril, the plainly calculated risk of which any person of ordinary intelligence would appreciate.
We conclude that the trial court properly overruled the defendant's motion for judgment notwithstanding the verdict, and that there is nothing in the cases cited by the defendant, plaintiff in error here, to incline us to a different view.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.
Gambrell, Harlan, Russell, Moye & Richardson, Robert R. Richardson, Scott S. Edwards, Jr., John W. Chambers, contra.
Marshall, Greene & Neely, J. G. Roberts, Burt DeRieux, for plaintiff in error.
DECIDED FEBRUARY 13, 1956.
Saturday May 23 02:41 EDT


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