dissenting. As construed by this court, the petition alleges two acts of negligence against Fletcher, the host driver: one, in driving his automobile in too close proximity to the motor vehicle preceding him to wit, 55 feet; and two, in driving his automobile while it was out of control. I think the demurrers should have been sustained. The facts alleged, as construed by this court, do not support the conclusion that Fletcher was guilty of gross negligence. I realize, of course, that generally questions of negligence, degrees of negligence, etc., are jury questions. However, the law defines the different degrees of negligence and, if every question of negligence or degree of negligence is a jury question beyond review by this court, the effort of the lawmakers to provide for different degrees is an idle gesture. To avoid obliterating the prescribed lines that distinguish the degrees of negligence, this court must draw the lines of demarcation when the facts demand. Lines should not be drawn just for the sake of drawing lines, as has been suggested, but they should be drawn on the basis of reason, experience, conscience, and public policy. The facts alleged in this case do not allege gross negligence. They do not allege an illegal speed, nor do they allege facts which show loss of control by Fletcher even after the sudden slowing down without warning by the preceding vehicle. I think it is unreasonable to in effect charge Fletcher with the negligence of the preceding vehicle and of the approaching driver. The majority opinion lays great stress on the fact that Fletcher’s car was out of control. I think the facts show he had his car under control before the sudden slowing down of the vehicle in front of him. Following a vehicle running 50 miles per hour at a distance of 55 feet for several miles cannot be termed gross negligence. If it can, the vehicle drivers of this State are in for a big surprise. The conclusion of the pleader that Fletcher’s negligence was gross can have no greater weight than the pleaded facts upon which it is predicated. See cases cited in Smith v. Hodges, 144 Ga. App. 318 (161 S. E. 284). The majority opinion cites West v. Rosenberg, 44 Ga. App. 211, as authority for the proposition that “it may be gross negligence for one to hit a plainly visible lighted object in the road at night.” I think the other circumstances in that case should be fully stated so that the ruling of the court may be perfectly clear. Headnote *3692 in that case is as follows: “In the instant suit against the driver of an automobile by one riding therein as his invited guest, for damages on account of injuries sustained when the defendant drove the car into and against an obstruction placed in the center of a city street by the municipal authorities, consisting of an iron post set in a heavy concrete base, rising several feet above the ground, and supporting a traffic-signal light flashing red, where it was alleged that the defendant was driving on a rainy night at a speed exceeding thirty-five miles per hour, in violation of an ordinance of the city limiting the speed of automobiles to fifteen miles per hour, and while the windshield wiper was not working, to which his attention had been called by passengers in the car, and while it was impossible for him to keep a proper lookout for danger or see very well; that the defendant knew the location of the traffic-signal light, and that at the time he approached the obstruction the light toward the defendant showed red, and was observed by him; and that the defendant drove directly into the obstruction, which acts, it was alleged, constituted gross negligence, the petition set forth a cause of action good as against general demurrer.”
The res ipsa loquitur rule is not applicable in gross-negligence cases. Minkovitz v. Fine, 67 Ga. App. 176 (19 S. E. 2d 561). I think this is one of those plain and palpable cases where this court can say that the allegations of the petition do not show that Fletcher was grossly negligent. I can concede that he could have been found guilty of ordinary negligence but, when it took an emergency initiated by the preceding vehicle, the gross negligence of the oncoming car, and Fletcher’s sudden reaction to the emergency to cause the collision, I cannot see how it can be reasonably concluded by anybody, court or jury, that Fletcher, under such circumstances, was guilty of gross negligence.