Opinion
41597.
SUBMITTED NOVEMBER 1, 1965.
DECIDED NOVEMBER 29, 1965.
Action for damages. Habersham Superior Court. Before Judge Smith.
Kimzey Kimzey, Herbert B. Kimzey, for appellant.
Erwin, Birchmore Epting, Eugene A. Epting, Telford, Wayne Greer, Tifton S. Greer, for appellees.
The facts alleged in the petition of the plaintiff guest passenger do not authorize the conclusion of the pleader that the defendant host driver was guilty of gross negligence.
SUBMITTED NOVEMBER 1, 1965 — DECIDED NOVEMBER 29, 1965.
Mrs. Mae Meeks filed suit in the Superior Court of Habersham County against Caroleen Louise Johnson, a resident of that county, and Jerome Carlisle, a resident of White County, to recover damages for injuries allegedly sustained by her when the automobile in which she was riding as a guest passenger, which was being operated by the defendant Johnson, was struck by an automobile being operated by the defendant Carlisle at the intersection of Pea Ridge Road and Mud Creek Road in Habersham County.
The petition alleged that the defendant Johnson, the host driver, was proceeding in a westerly direction on Pea Ridge Road with the intention of turning left onto Mud Creek Road; that Johnson approached and entered the intersection at a speed of 35 miles per hour or more when 10 miles per hour would have been a safe speed; and that Johnson failed to keep a lookout ahead and observe the automobile being operated by the defendant Carlisle which was being driven in a northerly direction on Mud Creek Road at a speed of 60 miles per hour or more as it approached the intersection. It was alleged that "after the defendant, Jerome Carlisle, saw that the Chevrolet automobile in which plaintiff was traveling was entering said intersection, he applied the fuel to the motor of his Pontiac automobile and increased the speed of same and drove same into the left hand side of the automobile in which plaintiff was traveling and collided with the same with great force and violence," causing described injuries to the plaintiff.
The petition alleged that the host driver, Johnson, was guilty of gross negligence in the following particulars:
"(a) In operating said Chevrolet automobile into said intersection at a speed of 35 miles an hour or more and greater than was reasonable and prudent under the conditions then existing and having regard to the actual and potential hazards then existing; a reasonable speed at said time and place would have been one not exceeding ten miles an hour;
"(b) In not bringing said automobile to a stop before entering said intersection under all the conditions then and there existing as herein set out;
"(c) In failing to have and maintain her automobile under her immediate control so as to avoid colliding with any person or vehicle which had the right of way in said intersection, especially the automobile owned and operated by the defendant, Jerome Carlisle;
"(d) In not controlling and operating her automobile at an appropriately reduced speed when approaching and entering said intersection;
"(e) In failing to keep a lookout ahead as she approached and entered said intersection;
"(f) In failing to bring her said automobile to a stop before colliding with the automobile owned and operated by the defendant, Jerome Carlisle, which was gross negligence on the part of said defendant under the facts herein set out, and a violation of the laws of this State;
"(g) In failing to signal her intention of making a left-hand turn into said intersection which was gross negligence on the part of said defendant under all the circumstances then and there existing as herein set out, and a violation of the laws of this State;
"(h) In failing to yield the right of way in said intersection to the defendant, Jerome Carlisle, who was at said time and place operating his motor vehicle from the opposite direction and so close to said intersection as to constitute an immediate hazard considering the speed at which the said defendant, Jerome Carlisle, was operating his said automobile, which was gross negligence on the part of said defendant and a violation of the laws of this State."
The defendant Carlisle was charged with the following specifications of negligence:
"(a) In operating his said Pontiac automobile into said intersection at a speed of 60 miles an hour or more and greater than was reasonable and prudent under the conditions then existing; a reasonable and prudent speed at said time and place would have been one not in excess of 15 miles an hour;
"(b) In not bringing said automobile to a stop before entering said intersection under all the conditions then and there existing as herein set out;
"(c) In failing to have and maintain his automobile under his immediate control so as to avoid colliding with any person or vehicle which had the right of way in said intersection especially the automobile owned and operated by the defendant, Caroleen Louise Johnson;
"(d) In not controlling and operating his automobile at an appropriately reduced speed when approaching and entering said intersection;
"(e) In failing to keep a lookout ahead as he approached and entered said intersection;
"(f) In failing to bring his said automobile to a stop before colliding with the automobile in which plaintiff was riding, which was negligence and a violation of the laws of this State;
"(g) In failing to yield the right of way in said intersection to the defendant, Caroleen Louise Johnson, who was making a left turn in said intersection and who had entered said intersection and commenced to make such left turn at the time the defendant, Jerome Carlisle, entered said intersection;
"(h) In increasing the speed of said automobile operated by him after he saw the automobile in which plaintiff was traveling was about to enter and had entered said intersection which was negligence on the part of said defendant and a violation of the laws of this State."
The petition alleged that the gross negligence of the defendant Johnson and the negligence of the defendant Carlisle concurred to constitute the proximate cause of the plaintiff's injuries.
The defendant Johnson filed a general demurrer to the petition and on July 29, 1965, the trial court entered an order in which it sustained the general demurrer and dismissed the petition as to both defendants. The appeal is from that judgment.
The sole question presented for decision is whether or not the plaintiff's petition set forth a cause of action against the host driver. If it did not, then the court properly dismissed the petition since the defendant Carlisle was alleged to be a resident of White County, Ga., and could not be sued in Habersham County unless the petition stated a cause of action against both defendants as joint tortfeasors. Richards Associates, Inc. v. Studstill, 212 Ga. 375 ( 93 S.E.2d 3).
A petition brought by a guest passenger against the host driver is subject to the general demurrer of the host driver if it does not allege facts sufficient to support the conclusion of the pleader that the host driver was guilty of gross negligence. Peavy v. Peavy, 36 Ga. App. 202 ( 136 S.E. 96); Luxenburg v. Aycock, 41 Ga. App. 722 ( 154 S.E. 460); Young v. Truitt, 93 Ga. App. 143 ( 91 S.E.2d 115); Conklin v. Jones, 95 Ga. App. 677 ( 98 S.E.2d 638). Gross negligence is the failure to exercise slight diligence which is defined by Code § 105-203 as "that degree of care which every man of common sense, howsoever inattentive he may be, exercises under the same or similar circumstances."
The gravamen of the charge of gross negligence against the host driver, as we construe the petition, is the alleged conclusion that the defendant Carlisle had the right of way at the intersection and that the host driver, instead of yielding the right of way to him, approached and entered the intersection at a speed in excess of 35 miles per hour and without keeping a lookout ahead to observe the defendant Carlisle's approaching automobile. The facts alleged in the petition, however, refute rather than authorize the conclusion that the defendant Carlisle had the right of way. Under the allegations of the petition the host driver reached and entered the intersection before the defendant Carlisle who was approaching from her left and since it was not alleged that this was a controlled intersection, the host driver clearly had the right of way under the provisions of Code Ann. § 68-1650 (a, b). Furthermore, the petition, while alleging in one paragraph that the defendant Carlisle had the right of way, alleged in another paragraph that the host driver had the right of way; and under such alternative pleadings, the petition, when construed most strongly against the pleader and in favor of the demurrant host driver, must be held to allege that the host driver had the right of way at the intersection and that the defendant Carlisle failed to yield to her. Farkas v. Kaufman, 108 Ga. App. 659 ( 134 S.E.2d 488).
This being true, we do not think that the remaining-allegations of the petition which set forth the alleged circumstances under which the host driver approached and entered the intersection are sufficient to support the conclusion that she was guilty of gross negligence. A driver having the right of way at an intersection has the right to assume that others will obey the rule of the road and will yield the right of way to him ( Eddleman v. Askew, 50 Ga. App. 540 ( 179 S.E. 247); Lusk v. Smith, 110 Ga. App. 36 ( 137 S.E.2d 734)), and he has the right to proceed at a reasonable speed even though he sees another vehicle approaching. Central Container Corp. v. Westbrook, 105 Ga. App. 855, 862 ( 126 S.E.2d 264). It has also been held that under ordinary circumstances the failure of the driver having the right of way at an intersection to keep a lookout ahead is immaterial since if he had observed the approaching vehicle which was under a duty to yield to him, he would have been authorized to proceed across the intersection notwithstanding its approach. Moffitt v. Dean, 84 Ga. App. 109 ( 65 S.E.2d 637).
What a driver having the right of way cannot do is "test a known and obvious peril, and after it is or should be clearly apprehended that a collision is threatened or imminent, he cannot blindly and recklessly proceed without regard to conditions and consequences. Eddleman v. Askew, 50 Ga. App. 540 (3) ( 179 S.E. 247)." Central Container Corp. v. Westbrook, 105 Ga. App. 855, 862, supra. This is, of course, a corollary of the principle of law that every driver of a motor vehicle must exercise ordinary care in the control, speed and movements of his vehicle to avoid a collision after he sees or by ordinary diligence could have seen that one is threatened by the active negligence of another. Buice v. Atlanta Transit System, 105 Ga. App. 795 ( 125 S.E.2d 795).
Whether or not the host driver failed to exercise ordinary care under the circumstances present here is immaterial, however, for she only owed the plaintiff guest passenger the duty of exercising slight diligence; and in our opinion the facts set forth in the petition, as distinguished from the conclusions of the pleader, do not show the absence of that care which every man of common sense, howsoever inattentive he may be, exercises under the same or similar circumstances or the presence of "carelessness manifestly materially greater than want of common prudence." Peavy v. Peavy, 36 Ga. App. 202, 205, supra.
If the allegations of the petition had supported rather than refuted the conclusion that the defendant Carlisle had the right of way at the intersection and the contrary had not been alleged, or, notwithstanding the fact that the host driver had the statutory right of way, if it had been alleged that the defendant Carlisle had in fact reached and entered the intersection before the host driver, or if the facts alleged had disclosed that the host driver had actually observed the Carlisle automobile approaching the intersection at a speed in excess of 60 miles per hour and was thus chargeable with knowledge that a collision was threatened, then a different situation would be presented since the fact that a host driver had the statutory right of way at an intersection would not ipso facto preclude him from being guilty of gross negligence in failing to yield to a vehicle not having the right of way under such circumstances. Lusk v. Smith, 110 Ga. App. 36, 39, supra. However, under the facts alleged here we must hold that as a matter of law the petition failed to set forth a cause of action against the host driver based on gross negligence, and that the trial court did not err in sustaining the general demurrer of the host driver and in dismissing the petition.
Judgment affirmed. Felton, C. J., and Deen, J., concur.