Redding, by Next Friend v. Morris., 105 Ga. App. 152, 123 S.E.2d 714 (1961)
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Judgment affirmed. Townsend, P. J., and Jordan, J., concur.
Summary
Judgment affirmed. Townsend, P. J., and Jordan, J., concur.
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Moise, Post & Gardner, R. Emerson Gardner, contra.Walter B. Fincher, for plaintiff in error.
Seaboard Air-Line Ry.,
Therefore, upon the trial of an action for damages for personal injuries brought by the driver of the automobile against the owner thereof on account of alleged negligence with reference to the defective brakes and accelerator of the automobile, the trial court did not err in directing a verdict for the defendant. Code Ann. 110-104.
ON MOTION FOR REHEARING.
Movant contends that facts in the record of this case require a result different from the one reached by this court. Such facts are, in substance, as follows: At the time of the collision the plaintiff, Wayne Redding, was a minor, 16 years of age, who was riding with the defendant, William H. Morris, in the defendant's automobile through an area of North Georgia many miles from the plaintiff's home, Douglasville, Ga.; that after the plaintiff and defendant left Helen, Ga., late at night, the defendant asked plaintiff to drive (knowing full well that the plaintiff was an unlicensed, inexperienced driver), because the defendant had become intoxicated and sleepy; and that the defendant furnished the plaintiff a defective car to drive. By reason of these facts, the movant contends that an issue was presented for the jury's determination as to whether the defendant's negligence proximately caused the injuries he sustained, or whether the plaintiff could have avoided such injuries by the exercise of ordinary care and diligence.
In addition to the above facts, the record shows without dispute that the plaintiff voluntarily traveled with the defendant; that they left Douglasville in the defendant's car in the early afternoon of October 13, 1956; that when they reached Austell, Ga., the defendant began to drink beer; that the defendant stopped at two or three more places before reaching Gainesville and drank beer; that they stopped at a restaurant at Gainesville about eight o'clock, p.m., where the defendant was involved in an altercation; and after leaving Gainesville, they went to Helen, Ga., where they stopped about midnight at a place of business operated by a friend of the defendant. The record is silent as to whether the plaintiff asked to go home while at any of these stops. The plaintiff testified that he had drunk one or two beers while riding with the defendant from Douglasville to Gainesville, and his testimony showed that he had worked at a service station on weekends for two years prior to the collision, and had, on occasions, driven vehicles onto and backed them off the grease rack, but he had never driven on a highway before the date of the collision.
While the above facts paint a sordid picture, and the conduct of the defendant was reprehensible, yet we must look to the body of the law in order to ascertain whether the trial judge was authorized to conclude as a matter of law that the plaintiff was not entitled to recover of the defendant because of his failure to exercise ordinary care for his own safety.
Phillips,
While it is true that "Here is a difference between mere knowledge of a defect and full appreciation of the risk involved" (Beck v. Wade,
The evidence shows that the plaintiff was an intelligent boy who, because of his duties at the service station, was not without some experience concerning the mechanical features of an automobile. This is not to intimate that the court concludes that the plaintiff was a competent driver, but the evidence was sufficient to show that the plaintiff should appreciate the danger of driving an automobile with defective brakes and a defective accelerator.
The fact that the plaintiff was not a competent, licensed driver does not determine the issue in favor of the movant. We are of the opinion that this fact operates against the plaintiff as well as the defendant. Both had knowledge that the plaintiff should not be driving. In this respect the plaintiff and defendant were in pari delicto; one cannot complain against the other.
The uncontradicted facts show that when the defendant was engaged in an altercation in Gainesville, Ga., a police officer intervened and informed the plaintiff that the defendant was in no condition to operate his car because of intoxication. The police officer suggested that the plaintiff drive. The plaintiff got under the steering wheel of the defendant's automobile and drove it about one-half mile, and then the plaintiff turned the automobile over to the defendant. At this point the plaintiff failed to exercise ordinary care for this own safety when he continued to ride as a passenger in an automobile driven by an intoxicated person, and if a wreck had occurred as a result of such intoxication while the defendant was driving and the plaintiff had been injured as a result thereof, he could not have recovered damages from the defendant. Staples v. Brown,
We adhere to our original opinion, and the motion is accordingly denied.
1961
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