Harris v. Reid

Jenkins, P. J.

(After stating the foregoing facts.) It is unnecessary to determine whether, under the circumstances related, the failure of the plaintiff to protest against the rate of speed at which the automobile was being driven constituted acquiescence in the defendant’s conduct, such as would prevent her from asserting liability therefor. See, in this connection, Epps v. Parrish, 26 Ga. App. 399, 400 ( 106 S. E. 297 ); Beard v. Klusmeier, 158 Ky. 153 ( 164 S. W. 319 ), 50 L. R. A. (N S.) 1100, 1102, 1103, Ann. Cas. 1915D, 342); Eitzjarrell v. Boyd, 123 Md. 497 ( 91 Atl. 547 ; see L. R. A. 1916E, 1193). This for the reason that, conceding that the proved acts and conduct of the defendant constituted the proximate cause of the injury, it could not properly be held that such acts and conduct, taken separately or together, evidenced “the want of that care which every man of common sense, how inattentive soever he may be, takes of his own property.” The speed at which she was driving and the fact that in some wholly unexplained manner she scraped the fender of the other car, could not possibly be held to prove that the defendant was operating the car without the existence of even a “slight” degree of care. Nor can it be said that' the fact that the deféndant, in. the emergency and under the sudden excitement attendant upon scraping the other car, and the admonition which was then uttered by"-the plaintiff, obeyed the promptings of a natural and humane instinct by momentarily glancing back at the other car and its occupants, evidences an entire lack of even slight prudence such as would constitute gross negligence. . See, also, Massaletti v. Fitzroy, 228 Mass. 487 ( 118 N. E. 168 ), L. R. A. 1918C, 264, case notes, 276; L. R. A. 1916E, case notes, 1193; 50 L. R. A. (N. S.), case notes, 1100; citations vol. 1, Supp. R. C. L., 740 (§ 38).

Judgment affirmed.

Stephens and Bell, JJ., concur.