Summary
In Harris v. Combs, 96 Ga. App. 638, 643 (101 S.E.2d 144), it was held that a seven year old child was too young to be guilty of contributory negligence.
Summary of this case from Faith v. MassengillOpinion
36894.
DECIDED OCTOBER 22, 1957. REHEARING DENIED NOVEMBER 4, 1957.
Tort; child injured by automobile. Before Judge Perryman, Emeritus. Wilkes Superior Court. August 14, 1957.
Clement E. Sutton, for plaintiff in error.
Walton Hardin, contra.
Where, as here, the evidence is somewhat in conflict, it is not error for the trial court to refuse to direct a verdict and subsequently to overrule the motion in the nature of a motion for a judgment notwithstanding the verdict.
DECIDED OCTOBER 22, 1957 — REHEARING DENIED NOVEMBER 4, 1957.
Gordon Combs brought suit as next friend of James Howard Combs, alleging damages because of injuries sustained by James Howard Combs. Paragraph 1 of the petition alleges that Mamie Williams Harris, hereinafter called the defendant, resided in Greenville, North Carolina. Paragraph 2 alleges that the defendant drove a car on a public highway in Georgia. Paragraph 3 alleges that the defendant is a nonresident motorist within the terms of the Motor Vehicle Act, as defined in Code (Ann.) § 68-801. Paragraph 4 alleges that it is necessary to serve the defendant by serving the Secretary of State of Georgia as agent and true and lawful attorney in fact of the defendant. Paragraph 5 alleges that the defendant was subject to the jurisdiction of the court. Paragraph 6 alleges that the defendant injured and damaged the plaintiff in the sum of $75,000 by reason of the facts shown in subsequent paragraphs of the petition. Paragraph 7 alleges that the injured person was James Howard Combs, 7 years of age. Paragraph 8 alleges that on or about 12:30 p. m. June 5, 1956, the defendant was driving on Highway 44 near Washington, Georgia. Paragraph 9 alleges that at that time the child was returning home from Bible school. Paragraph 10 alleges that the child was crossing Highway 44 at the same time the car was at that point. Paragraph 11 alleges that the defendant was driving her car at the rate of 70 miles per hour at that time. Paragraph 12 alleges that the defendant was talking to her niece, listening to a radio and paying scant attention to her duties as a driver. Paragraph 13 alleges that the child was struck by the car of the defendant "at a point five and one-half inches from tip of his right ear." Paragraph 14 alleges that the child was hurled violently against the car and carried a distance of 81 feet. Paragraph 15 alleges that after the forward momentum of the defendant's vehicle was slowed for the child to become disengaged, the child was rolled or carried by the forces of inertia for 31 feet along the right-hand or north shoulder of the highway. Paragraph 16 alleges the exact location on the road and alleges that the point of impact "was 11 inches from the north side of the pavement edge." Paragraph 17 alleges the pavement to be 22 feet wide. Paragraph 18 alleges that on the day of the collision the highway surface was dry and visibility unlimited. Paragraph 19 alleges that the impact fractured the skull of the child, lacerated and contused his body and limbs and left him permanently maimed and crippled. Paragraph 20 alleges that the child was healthy and normal at the time of the injury and had a life expectancy of 50.80 years. Paragraph 21 alleges that at all times mentioned herein the defendant was driving her car with improper and defective brakes. Paragraph 22 alleges specific injuries incurred by the child as a result of the collision. Paragraph 23 alleges that the negligence of the defendant was the proximate cause of the injuries and damages. Paragraph 24 alleges that the plaintiff is entitled to recover $75,000 therefor.
The defendant answered by admitting paragraphs 1, 2, 3, 4, and 5 of the plaintiff's petition. Paragraph 2 of the defendant's answer denies the allegations of paragraph 6 and demands strict proof. Paragraph 3 neither admits nor denies paragraphs 7, 8, 9, and 10, alleging want of information. Paragraph 4 denies the allegations of paragraph 11 of the petition and further avers and alleges that she was driving at a speed of 40 or 45 miles per hour at the time and place alleged in the petition. Paragraph 5 denies paragraphs 12, 13, 14, and 15 of the petition. Paragraph 6 neither admits nor denies paragraphs 16, 17, 19 and 20, alleging lack of information because the allegations of the petition are peculiarly within the knowledge of the plaintiff and about which the defendant has no knowledge. Paragraph 7 admits paragraph 18 of the petition except that the defendant denies that the visibility was unlimited. Paragraph 8 denies the allegations of paragraph 21 of the petition and demands strict proof thereof. Paragraph 9 denies the allegations of paragraphs 22, 23, and 24 and demands strict proof of same. Paragraph 10 avers that if the child was injured, it was through no fault or negligence on the part of the defendant, but was due to the carelessness and negligence on the part of the child himself. Paragraph 11 avers that if the child was injured, the sole and only cause thereof was the negligence and carelessness of the child himself. Paragraph 12 avers that if the child was injured he could have avoided the injury by the exercise of ordinary care and diligence.
The plaintiff amended the original petition as follows: Paragraph 23 (e) was added alleging that the defendant drove her vehicle over the highways of the State of Georgia at a high and rapid rate of speed in excess of the speed limit of the State of Georgia.
The court allowed the amendment to be filed and allowed the case to go to the jury. At the conclusion of the evidence, counsel for the defendant moved for a directed verdict on the ground that the evidence adduced at the trial failed to show wherein the defendant was liable in any amount to the plaintiff.
The jury were unable to agree on a verdict, and a mistrial was ordered. After the mistrial the defendant renewed the motion for a directed verdict and asked the court for a hearing. The trial judge set a hearing on the motion for judgment in accordance with the motion for a directed verdict, which was denied, and it is to this judgment that the case is here for review.
The evidence shows substantially as follows: Mamie Harris, the defendant here, testified on cross-examination that she was driving her 1953 Plymouth on Highway 44 on June 5, 1956, between Washington, Georgia and Union Point, Georgia, traveling 40 to 45 miles per hour; that she saw a car approaching her; that she did not realize that it was stopped until she was approximately three car lengths from it; that she began to slow down and when she got right at the car she saw the plaintiff's child dart out from behind; that her niece was in the car with her but they were not talking and the radio was not on; that when she saw the boy she applied her brakes and made a desperate attempt to stop; that she guessed she stopped in about 40 feet; that her brakes had been tested on May 23 in Greenville and there was a sticker on her windshield stating that fact, and that she did not have on her glasses since she required them only for reading and writing.
Darrell McAvoy, age 17, testified he was taking the boy home from Bible school in his father's 1951 Ford; that he stopped directly in front of the Combs driveway on the opposite side of the road in the right-hand lane; and that he had seen the defendant's car approaching. On cross-examination the same witness testified that he saw the defendant when she crossed the Kettle Creek Bridge which he figured was approximately 1,000 feet away; that he let the Combs boy out of the car and at that time noticed a car approaching from the rear; that there was plenty of time for the boy to get across the road and he told him to run across, but the boy went to the rear of the car and stood there; that he called to him two or three more times to go ahead and cross the road but he waited; that he heard the defendant's car skidding; that the boy had nearly reached the other side of the road when the right front of the defendant's car struck him; that he would estimate the defendant's speed at 40 to 50 miles per hour.
The victim's mother testified that her son was in the hospital 16 days and further described his injuries which she believed to be permanent.
The victim's father (the plaintiff here) testified that he was standing in his yard waiting for his son when he heard a collision out front; that he had a slipped disc and that Preacher Speering picked the boy up and took him on to the hospital before he could get out there; that he went on to the hospital and into the operating room where his son was. The witness further testified that Mrs. Harris made no attempt to stop until she was right on the boy; that when she felt her brakes she did not have any and tried again and found them; that, while the boy was being operated on, the witness walked out of the hospital and sat down in the defendant's car and tested her brakes; that his foot hit the floor board and he applied pressure again and the brakes caught about two-thirds of the way down; that it was "Mrs. Mamie Harris' 1953 Plymouth, gray one"; that he did not report this to anyone; that he figured at the scene of the accident that it was 121 feet from the point of impact to where the boy finally stopped; that the distance between Kettle Creek Bridge and his mail box is approximately 2,000 feet, and that the skid marks are still out there but approximately gone. On cross-examination the same witness testified that from where he was standing in his yard he could not see his son when he started across the road; that he could see only the tops of the cars; that there were "brake marks on the pavement where Mrs. Harris put on brakes . . . The brake marks started just about straight in front of my driveway." The plaintiff further testified that his son had been riding the school bus and he had whipped him for coming across the road slow. On redirect examination the plaintiff testified that he just heard the slam; that up on the high bank up in his yard he couldn't tell too much about it.
Dr. A. D. Duggan testified that the boy was brought to him at the Washington General Hospital in an unconscious condition with scalp lacerations, a fractured skull, and with brain damage which could have been fatal; that the boy has recuperated from his injuries and an operation which was performed in Augusta and that he has suffered some loss of hearing and a relatively slight to moderate limp.
B. L. Tucker of the Georgia State Patrol testified that he investigated the case and discovered brake marks which measured 81 feet, and at a spot 30 feet in front of where the brake marks stopped there appeared to be blood on the ground indicating the place where the boy finally stopped. He further stated that he believed a car with normal brakes traveling 45 to 50 miles per hour requires 70 to 80 feet to stop; that no request was made that he check the brakes of the defendant's car; and that the day was clear, the pavement dry and the marks on the pavement indicated that the brakes held as far as he could tell.
Rev. Fred L. Speering testified that the McAvoy car was about 100 yards in front of him when the boy was struck by the defendant's car; that he had seen the boy standing in back of the McAvoy car; that Mrs. Harris was traveling about 45 miles per hour; that she was about five car lengths in front of the McAvoy car when the boy started running across the road from behind it.
The question for determination here is whether or not the court erred in refusing to grant the motion for judgment in accordance with the motion for a directed verdict. We have set out the testimony hereinabove in detail. It appears that the only testimony as to defective brakes was that of the plaintiff. According to his testimony, he just happened to sit in the car of the defendant parked in front of the hospital, happened to test the brakes and found them defective, and that he did not report this to the authorities. Code (Ann.) § 68-1715 covers the matter of defective brakes. See Railway Express Agency v. Standridge, 68 Ga. App. 836, 840 ( 24 S.E.2d 508). There is other positive testimony as to the condition of the brakes from many other witness such as tire marks, sign of brakes being applied, etc. See American National Ins. Co. v. Gantt, 46 Ga. App. 744 ( 169 S.E. 133) wherein this court said: "The testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him, when it is self-contradictory, vague, and equivocal. And unless there be other evidence tending to establish his right to recover, he is not entitled to a finding in his favor, if the version of his testimony most unfavorable to him shows that the verdict should be against him." See also Clark v. Calhoun National Bank, 53 Ga. App. 691, 694 ( 187 S.E. 304), and Branan v. LaGrange Truck Lines, Inc., 94 Ga. App. 829, 845 ( 96 S.E.2d 364). No contributory negligence can be involved on the part of the child because of the very young age of the child. See Braswell v. Smith, 27 Ga. App. 430 ( 110 S.E. 415), Cohn v. Buhler, 30 Ga. App. 14, 17 ( 116 S.E. 864), and Ragan v. Goddard, 43 Ga. App. 599, 602 ( 159 S.E. 743).
In an emergency a driver is not required to exercise the same care as if driving without the presence of the emergency. See Pacetti v. Central of Ga. Ry. Co., 6 Ga. App. 97, 102 ( 64 S.E. 302); Brown v. Savannah Electric c. Co., 46 Ga. App. 393, 399 ( 167 S.E. 773); Horton v. Sanchez, 57 Ga. App. 612, 620 ( 195 S.E. 873); Chitwood v. Stoner, 60 Ga. App. 599, 603 ( 4 S.E.2d 605); Luke v. Powell, 63 Ga. App. 795, 804 ( 12 S.E.2d 196); Cone v. Davis, 66 Ga. App. 229, 233 ( 17 S.E.2d 849); Baggett v. Jackson, 79 Ga. App. 460, 464 ( 54 S.E.2d 146); Fetzer v. Rampley, 81 Ga. App. 806, 809 ( 60 S.E.2d 184). The driver is not liable if a child runs into a vehicle where the driver could not anticipate or avoid a collision. See Christian v. Smith, 78 Ga. App. 603, 606 ( 51 S.E.2d 857).
Negligence is a question particularly for the jury. See Otis Elevator Co. v. Rogers, 33 Ga. App. 181, 188 ( 125 S.E. 763), King v. Loeb, 93 Ga. App. 301 ( 91 S.E.2d 532) and Beale v. Grimsley, 94 Ga. App. 891 ( 96 S.E.2d 615).
Judgment affirmed. Townsend and Carlisle, JJ., concur.