dissenting. I can not concur in the majority opinion. The suit was against the driver of an automobile, by a gratuitous passenger, for alleged gross negligence in operating the ear. The defendant driver upon the outcry of one of her children riding on the back seat of the car, "Mother, the milk has turned over,” turned her head to look in the bottom of the car in the back, and, although she was traveling at the rate of 35 miles per hour and was entering a sharp curve in the road with which she was familiar, kept her head turned until the car traveled 140 feet, where it struck a telephone post on the side of the paved road and caused the injuries, complained of to her guest riding beside her on the front seat of the car. The driver kept her head turned "at least three seconds” and never did see the post she struck. There was nothing to prevent her from seeing and avoiding the post, except the failure to look "where she was going.” She testified: "I turned my head and kept it turned several seconds—I just calmly turned my head: I was not excited, I was not nervous. . . I looked back and did not turn the car to take the curve.”
A gratuitous guest riding in another’s automobile can not recover for injury caused by the other’s negligence in driving, unless it amounted to gross negligence. Epps v. Parrish, 26 Ga. App. 399 (106 S. E. 297); Harris v. Reid, 30 Ga. App. 187 (117 S. E. 256); Peavy v. Peavy, 36 Ga. App. 202 (136 S. E. 96); Hall v. Slaton, 38 Ga. App. 619 (144 S. E. 827), s. c. 40 Ga. App. 288 (149 S. E. 306); Slaton v. Hall, 168 Ga. 710 (148 S. E. 741, 73 A. L. R. 891); Pitcher v. Curtis, 43 Ga. App. 622 (159 S. E. 783); McDuffie v. Childs, 43 Ga. App. 37 (157 S. E. 900); Poole v. Yawn, 45 Ga. App. 58 (163 S. E. 315); Rosenhoff v. Schaul, 42 Ga. App. 776 (157 S. E. 215); Blanchard v. Ogletree, 41 Ga. App. 4 (152 S. E. 116); Meddin v. Karsman, 41 Ga. App. 282 (152 S. E. 601); Luxenburg v. Aycock, 41 Ga. App. 722 (154 S. E. 460); Wachtel v. Block, 43 Ga. App. 756 (160 S. E. 97); West v. Rosenberg, 44 Ga. App. 211 (160 S. E. 808); Smith v. Hodges, 44 Ga. App. 318 (161 S. E. 284); Townsend v. Minge, 44 Ga. App. 453 (161 S. E. 661); Yearwood v. Yearwood, 45 Ga. App. 203 (164 S. *843E. 105). It is insisted by plaintiff in error that under the decision in Harris v. Reid, supra, there was such an emergency and sudden excitement attendant upon the turning over of the milk and the exclamation of the child, Avhich caused the defendant to obey the prompting of a natural and humane instinct by momentamly glancing back to see what had happened, that such conduct could not, as a matter of law, be termed gross negligence. It appears in the Harris case, supra, that there was a momentary glancing back because the car in which the defendant was riding had scraped fenders with another car it had passed, and the wreck causing the injury occurred immediately thereafter. We recognize that the expressions “momentarily” and “immediately” are relative terms and may have different meaning, as is evidenced by the other circumstances happening at the same time, or by the witness or person using them. A momentary glancing back in a sudden emergency, as where another car has been struck in passing and the wreck following in “practically immediate succession,” as was said in the Harris case, does not constitute gross negligence, but such are not the exact circumstances that were developed upon the trial of the case at bar. Here the car traveled 130 feet from the point where the exclamation was made, and the momentary glancing back occurred at the point of the collision. Three seconds at least elapsed during which time the driver of the car was continuously looking back, and the car traveled 130 feet and the driver never did see the post which was struck. Nor Avas the speed of the car slackened. This court has differentiated the facts in the Harris case, in Pitcher v. Curtis, supra; for it was said there that “in the Harris ease the defendant’s looking back Avas a mere glance and was a perfectly natural circumstance. . . A slight difference in facts may work a very material difference in the legal result, and this is especially true in tort cases.” It has been decided too many times to need any citation of authorities that questions of negligence and diligence, and even of gross negligence and slight diligence, are matters to be determined by the jury, except in plain and indisputable cases, in which the court may solve questions as a matter of law. Gross negligence is defined in the Code of 1910> § 3473, as “the want of that care which every man of common sense how inattentive soever he may be, takes of his own property.” (See Code of 1933, § 105-203.) In one of the cases cited by counsel *844for plaintiff in error, Silver v. Silver, 108 Conn. 371 (143 Atl. 240), it will be noted that in Connecticut, cases of this kind are governed by a special statute, and before a guest may recover from the owner or driver, the negligence must be wilful and wanton. South Carolina has a similar statute and the negligence there must be. wilful and wanton before a recovery may be had. See, in this connection, Lee v. Lolt, 50 Ga. App. 39 (177 S. E. 92). “Many authorities regard gross negligence as the equivalent of wilful and wanton negligence, although in this State it is not so accounted, unless the evidence indicates fthat entire absence of care which would raise a presumption of conscious indifference/ ” or that with reckless indifference the person acted with actual or imputed knowledge that the inevitable or probable consequence of his conduct was to inflict injury. Harris v. Reid, supra. See also Southern Ry. Co. v. Davis, 132 Ga. 812 (65 S. E. 131). A motion for a non-suit is in effect a demurrer to the evidence. We can not say as a matter of law that a petition pleading the facts as here developed would be subject to general demurrer.- As was said by Bleckley, J., in Vickers v. Atlanta & West Point R. Co., 64 Ga. 306: “Non-suit is a process of legal mechanics: the case is chopped off. Only in a clear gross case is this mechanical treatment proper. When there is any doubt another method is to be used—a method involving a sort of mental chemistry; and the chemists of the law are the jury. They are supposed to be able to examine every molecule of the evidence and to feel every shock and tremor of its probative value.” The jury returned a verdict for the plaintiff, which is not excepted to except as an assignment of error to a final judgment, and the real error complained of is the overruling of the motion for nonsuit. The court did not err in overruling that motion.