Opinion
42597.
SUBMITTED FEBRUARY 7, 1967.
DECIDED APRIL 4, 1967.
Action for damages. Oglethorpe Superior Court. Before Judge Williford.
Erwin, Birchmore Epting, Denny C. Galis, for appellant.
Grant Matthews, William F. Grant, C. A. Matthews, for appellee.
Frank Glenn brought this action against Hugh A. Smith to recover for personal injuries caused by defendant's negligence. The undisputed evidence showed that plaintiff was riding as a guest passenger in a pickup truck operated by defendant. It was nighttime, and the truck was traveling at a speed of approximately 45 miles per hour on a rural post road over hilly terrain and approaching a curve downgrade to the right. Defendant dropped a lighted cigarette, which fell to the floor of the truck. Defendant made no effort to stop the truck, but immediately bent over, as low as he could, to look for the cigarette, averting his eyes from the road for several seconds. While defendant was thus preoccupied, the vehicle ran off the road onto the left shoulder. Defendant then "cut" the vehicle back to the right, and it ran off the road on the right, turned over and crashed into an embankment, injuring plaintiff. There was no evidence that plaintiff was contributorily negligent or that he could have avoided the consequences of defendant's negligence. Under the facts of this case, it was a question for the jury whether the defendant was guilty of gross negligence, and the trial court erred in directing a verdict for plaintiff on the issue of liability. See Smith v. Hodges, 44 Ga. App. 318, 321 ( 161 S.E. 284); Jordan v. Lee, 51 Ga. App. 99 (2, 3) ( 179 S.E. 739); Capers v. Martin, 54 Ga. App. 555 (3, 4) ( 188 S.E. 465); Austin v. Smith, 96 Ga. App. 659, 663 ( 101 S.E.2d 169).
Judgment reversed. Jordan and Pannell, JJ., concur.