Sorrough v. Smith

Evans, Judge. 1. The appeal is from a judgment, “dated January 13, 1970, sustaining a motion on behalf of the defendant, Eddie Smith, for a directed verdict.” Examination of the judgment shows it followed the verdict which was “by direction of the court.” This is a final judgment which is no longer pending in the court below. Code Ann. § 6-701 (Ga. L. 1965, p. 18; 1968, pp. 1072, 1073). Compare Crowe v. Holloway Development Corp., 114 Ga. App. 856 (1) (152 SE2d 913). The motion to dismiss is denied. 2. Except in plain and palpable cases questions of whether or not the negligence shown is gross or ordinary are always for determination by the jury. Fortner v. McCorkle, 78 Ga. App. 76 (50 SE2d 250); Malcom v. Malcolm, 112 Ga. App. 151 (144 SE2d 188). Since gross negligence is that failure to exercise slight diligence which is the care which every man of common sense takes of his own property, the facts here were such that a jury could have found the plaintiff was riding as a guest in the auto of the defendant who, with total disregard of his own safety as well as that of the passenger, struck another vehicle in the rear because he was inattentive and unaware of the presence of the automobile clearly visible in his path, all of which was for determination by the jury. No skid marks were apparent to show he braked the car, although he testified he did, striking a car in the rear traveling 5 to 10 miles per hour or completely stopped in the center of the road, at a speed estimated from 25 to 40 miles per hour; the driver allegedly admitting to the plaintiff “I am bound to be wrong because I hit him in the rear end” and “wasn’t watching what [I] he was doing.” The lower court erred in directing the verdict. Judgment reversed. Hall, P. J., and Deen, J., concur. Argued April 14, 1970 Decided May 25, 1970 Rehearing denied June 5, 1970 Scott & Alexander, Guy B. Scott, Jr., for appellant. Erwin, Epting, Gibson •& Chilivis, Nicholas P. Chilivis, for appellee.