Browning v. Kahle , 106 Ga. App. 353 ( 1962 )

Frankum, Judge.

“No duty devolves upon the guest passenger, who' has no right or duty to control the operation of the automobile, unless the circumstances are such that he is afforded a reasonable opportunity to take appropriate action to avoid being injured.” Smith v. Harrison, 92 Ga. App. 576 (4) (89 SE2d 273). A guest passenger is not bound to exercise the same degree of care and diligence as a driver of an automobile in which the guest is riding. See Harper v. Williams, 89 Ga. App. 645 (80 SE2d 722). In every case we have found holding that a guest passenger had a duty to take some affirmative action such as to warn his host driver of a hazard, it appears from the facts and circumstances that the guest had actual knowledge of the hazard coupled with an opportunity to take appropriate action to avoid injury to himself or to warn the host driver of the hazard. See Mishoe v. Davis, 64 Ga. App. 700 (14 SE2d 187); Healan v. Powell, 91 Ga. App. 787 (3) (87 SE2d 332); Smith v. Harrison, 92 Ga. App. 576 (4), supra; Bentley v. Buice, 102 Ga. App. 101 (115 SE2d 706); Bellamy v. Georgia Power Co., 67 Ga. App. 569 (21 SE2d 294); Wade v. Drinkard, 76 Ga. App. 159 (45 SE2d 231).

As stated in Bussell v. Bayne, 45 Ga. App. 55, 56 (163 SE 290): “A person riding as a guest may, until he has notice to the contrary, assume that neither the driver nor others upon the highway will be negligent, and may also assume that the driver will exercise the proper care to avoid the negligence of others; but while the negligence of the host is not imputable to the guest, the guest can not close his eyes to known or obvious dangers arising either from the acts of the driver or from the acts of others, and if there is a danger from either cause, and the circumstances are such that it would become apparent to a person of ordinary prudence in like circumstances, then it is the duty of the guest to do whatever in the opinion of a jury a person of ordinary prudence would or should do in the same or like circumstances.” See also Roberts v. King, 102 Ga. App. 518 (116 SE2d 885).

In the Russell case, supra, as well as Crandall v. Sammons, 62 Ga. App. 1 (7 SE2d 575), the plaintiff actually knew of the hazard and did nothing about it. There is not one scintilla of evidence that the plaintiff’s host driver in the instant case had been driving negligently before he started to make the left turn, or that he did anything'to put the plaintiff on notice that he would be negligent, if in fact he was negligent, in making the left turn. The evidence is insufficient to show that the plaintiff had’ actual notice of the hazard which imperiled her safety, and under the above authorities, there w(as no duty resting upon her as a guest to keep a diligent lookout ahead until there was something to place her on notice that she, in the exercise of ordinary care, should keep a lookout or be vigilant as a necessary precaution for her own safety. Accordingly, it was error to charge upon principles of law relating to comparative negligence, contributory negligence, and assumption of risk on the part of the plaintiff, because the evidence did not authorize a charge upon these principles, and the extensive charge by the court on these principles of law likely impressed upon the minds of the jurors that there was an issue as to the plaintiff’s negligence. See Healan v. Powell, 91 Ga. App. 787, supra; Granger v. National Convoy &c. Co., 62 Ga. App. 294 (7 SE2d 915); Smith v. Harrison, 92 Ga. App. 576, supra. A charge not authorized by the evidence is error, although such charge may be abstractly correct. Central Ga. Power Co. v. Cornwell, 139 Ga. 1 (2) (76 SE 387). See Butt v. Maddox, 7 Ga. 495 (3), and Towns v. Kellett, 11 Ga. 286 (2). The court erred in overruling the special grounds of the motion for a new trial assigning as error parts of the charge of the court which were not authorized by the evidence. The remaining special grounds are without merit. As the case must be retried, we will not rule upon the general grounds.

Judgment reversed.

Nichols, P. J., and Jordan, J., concur.