Friedman v. Sloan

Per curiam. In an action for personal injuries, the defendants appeal from a grant of summary judgment on the issue of liability as to Count 2 of the plaintiff’s petition. This count alleges that defendant drove the automobile in a negligent manner into a mailbox. The undisputed facts show that the minor defendant was the driver and the minor plaintiffs were paying passengers in a high school car pool. The defendant threw a lighted cigarette out of the side vent; it blew back and caught between her leg and dress on the seat; she took one hand off the wheel and her eyes off the road in an attempt to retrieve it; the automobile first veered off one side of the road, hitting several mailboxes; then, in an attempt to turn back on, she oversteered and hit a telephone pole on the opposite side. Just before the occurrence, she had been [99] driving in a manner acceptable to the passengers. Argued June 1, 1971 Decided September 23, 1971 Rehearing denied November 23, 1971. Long, Weinberg, Ansley & Wheeler, Palmer H. Ansley, Charles E. Walker, for appellants. Applying the "plain, palpable and undisputable” rule, we cannot say that the undisputed facts are so clear as to leave no room for a jury to find save one way. "In some jurisdictions there are decisions declaring that the jury can be instructed that particular acts do or do not constitute negligence which will, or will not, authorize or prevent a recovery. But in this State, as a general rule, whether an act is negligent is a question for the jury; and except where a given act is forbidden, and rendered negligent per se as to the injured person, or an act is commanded and its omission rendered negligent, by a statute or valid municipal ordinance, the presiding judge should not instruct the jury what ordinary care requires to be done in a particular case. Atlanta & W. P. R. Co. v. Hudson, 123 Ga. 108 (51 SE 29), and cit.; Central of Ga. R. Co. v. Cole, 135 Ga. 72 (68 SE 804); Atlantic C. L. R. Co v. McDonald, 135 Ga. 635 (6), 636 (70 SE 249). Nevertheless, in some cases, the undisputed facts may be so clear as to leave no room for a jury to find save one way, and the question may become one of law and be dealt with on demurrer or motion for a nonsuit.” Powell v. Berry, 145 Ga. 696, 701 (89 SE 753, LRA 1917A 306). As to Garrett v. Royal Bros. Co., 225 Ga. 533 (170 SE2d 294), see Hardin v. Reynolds, 189 Ga. 589, 591 (6 SE2d 913); Rivers v. Cole Corp., 209 Ga. 406, 408 (73 SE2d 196). The trial court erred in granting plaintiff’s summary judgment on the question of liability. Judgment reversed. Jordan, P. J., Hall P. J., Eberhardt and Quillian, JJ., concur. Pannell, J., concurs specially. Bell, C. J., Deen, Whitman and Evans, JJ., dissent. Saul Blau, for appellees.