Opinion
33884.
DECIDED MARCH 7, 1952.
Action for damages; from Savannah City Court — Judge Heery. October 5, 1951.
Sullivan Maner, for plaintiff in error.
Harry P. Anestos, contra.
The petition showed that the plaintiff did not exercise ordinary care for her own safety, and the court erred in overruling the general demurrer thereto.
DECIDED MARCH 7, 1952.
Inez Owens sued J. C. Williams for injuries allegedly arising out of the gross negligence of the defendant in the operation of a vehicle in which the plaintiff was a guest. The petition alleged substantially: that the plaintiff and her husband were in the grocery store of the defendant buying groceries on the evening of January 19, 1951; that, preparatory to closing his store for the night, the defendant invited the plaintiff and her husband to go for a ride with the defendant and his wife, and the plaintiff and her husband accepted the invitation; that they entered a panel truck owned by the defendant, and the defendant drove to a night club where the defendant, his wife, the plaintiff and her husband alighted from the truck and entered the club; that the defendant began drinking heavily, and while in the club became very disagreeable and engaged in an altercation with the owner of the club and with others who were present; that, after the altercation, the defendant, his wife, the plaintiff and her husband left the club to enter the defendant's truck to go home; that the plaintiff insisted that the defendant was in no condition to drive, and requested that her husband be allowed to drive; that this request was rejected, whereupon they all entered the truck; that, at a point approximately 300 yards from the night club, the defendant turned the truck around and drove back to the club, and while sitting in the truck the defendant drew out a pistol and began shooting at the front of the night club; that at the time of the shooting the defendant was still sitting in the driver's seat and shot out of the right window of the truck and across the face of the plaintiff's husband who was sitting there; that at this point the plaintiff, who was sitting in the rear of the truck, requested and demanded that she and her husband be allowed to leave the truck; that the defendant refused this request and insisted that the plaintiff and her husband remain in the truck, and drove away from the club at a reckless and excessive rate of speed; that driving at such a high, unreasonable, excessive and dangerous rate of speed, and being in an intoxicated condition under the circumstances, rendered the defendant unable to control his truck and to bring it to a stop within the radius of his headlights upon approaching danger; that the said negligence in driving at such a reckless rate of speed in an intoxicated condition endangered the safety of persons then on the streets, including the plaintiff and her husband; that, while driving in such a manner and in such an intoxicated condition, the defendant failed to negotiate a turn at an intersection and collided with a pile of railroad cross-ties, which collision caused enumerated injuries to the plaintiff; that the operation of the vehicle by the defendant at such a reckless speed and in such an intoxicated condition constituted negligence, which was the proximate cause of the plaintiff's injuries. A general demurrer to the petition was overruled, and the defendant excepts.
While ordinarily questions of comparative negligence are ones for a jury, if a petition shows that the plaintiff failed to exercise ordinary care for her own safety, a general demurrer to the petition will be sustained and the action dismissed. The petition alleged that the defendant drank heavily while in the night club. It also alleged: "Plaintiff insisted that the defendant was in no condition to drive and requested that her husband be allowed to drive said automobile. This request was rejected and, in order to allow the defendant more room for driving, plaintiff got into the back of the truck." It was alleged that the proximate cause of the plaintiff's injuries was the drunken and reckless driving of the defendant. By an express allegation the plaintiff admitted that she knew before she entered the truck that the defendant was in no condition to drive. With this fact before her, the plaintiff did not exercise ordinary care in entering the truck to be driven by the defendant, even though she later requested that she be allowed to leave the truck. The defendant in error relies on the case of Evans v. Caldwell, 45 Ga. App. 193 ( 163 S.E. 920). The record in that case shows that the petition alleged that after the plaintiff had entered the defendant's car, he discovered for the first time that the defendant was intoxicated and had poor muscular control over himself. The petition did not allege that between the time the plaintiff first entered the car and the time of the accident, the plaintiff and the defendant stopped, got out of the car, and after a brief stop resumed the trip. Therefore, so far as the pleading is concerned, the plaintiff in that case did not discover the "intoxicated" condition and the "poor muscular control" of the defendant until after he had entered the car, and did not have an opportunity to leave the car before the accident occurred. On the trial of the case, the plaintiff testified that, after he first got into the car, he thought the defendant had had a drink, and that this was what he had meant in his pleading when he had pleaded that the defendant was "intoxicated," and that, when he alleged that the defendant "had poor muscular control," he meant that the defendant could have driven all right if he had not driven so fast. The jury were authorized to find from the evidence in that case that, while the plaintiff knew the defendant had had a drink, he did not know that the defendant was too intoxicated to drive safely.
The court erred in overruling the general demurrer to the petition.
Judgment reversed. Sutton, C.J., and Worrill, J., concur.