Opinion
43252.
ARGUED JANUARY 5, 1968.
DECIDED FEBRUARY 9, 1968.
Action for damages. Fulton Superior Court. Before Judge Tanksley.
Powell, Goldstein, Frazer Murphy, Eugene G. Partain, Edward R. Moore, for appellant.
Lawson E. Thompson, for appellee.
Where a motorist who is otherwise guilty of no act of negligence in operating a vehicle on a public highway actually sees a very young child unattended at the side of the road under circumstances from which a jury might infer that he should anticipate that the child might dart into the road, whether or not he is negligent in not guarding against such an eventuality cannot be determined by the court as a matter of law.
ARGUED JANUARY 5, 1968 — DECIDED FEBRUARY 9, 1968.
The plaintiff, mother of a six-year-old child who was killed while crossing a road in front of defendant's automobile, alleged negligence in traveling at an undue rate of speed, failing to control the vehicle, not observing and avoiding the child, not granting him the right of way and not taking due precautions in view of the child's age. The defendant's motion for summary judgment was denied, and he appeals.
From the deposition of C. H. Fouche it appears that his vehicle was approaching the Banks car in a 60-mile zone; that he noticed the child at a mailbox on the left side of the road; that two vehicles in front of him passed the mailbox; that there was an embankment on both sides of the road; that when he was about 200 feet back of the point of impact the child, who had been watching the vehicles in front of him looked at his car, turned and look at the defendant's car and then darted out into the road 15 or 20 feet in front of the latter; that the defendant attempted to swerve to the left and that he skidded about 40 feet, causing a boat and trailer which he was towing to jackknife. The contact point was shown by a dent in the hood of the defendant's automobile. Of the child he said, "It seemed like he was waiting for this black pickup truck to get by and he could run across the road in front of me." He estimated that the defendant, after cresting a small hill, could see the child 200 to 300 feet away.
Kennedy's affidavit stated that the mailbox was located about 9 feet from the pavement; that he saw the child when 173 yards away and the child gave no indication that he intended to cross the road; that he looked directly at defendant's automobile and suddenly, when defendant was no more than 24 feet away, darted into the front end of the car. Defendant was traveling approximately 45 miles per hour, and skidded approximately 100 feet, the boat trailer jackknifing into the car. The plaintiff's affidavit also placed the skid marks at about 100 feet.
1. There is nothing to indicate that the defendant was traveling at an excessive or illegal speed, that he did not have his car under control, that he was not paying attention, that the vehicle was not in good mechanical condition, or that the view was obstructed. The only real question in the case may be thus stated: where a motor vehicle operator who is otherwise in the exercise of due care has actual knowledge of the presence of a child at the side of the road (he having seen the child cross the highway to the mailbox, and thus perhaps being chargeable with knowledge that it would return to the house), and when he also sees the child watching approaching traffic, and actually looking at his approaching car, under such circumstances might the minds of reasonable men differ on the question of whether these facts should cause him to anticipate that the child would suddenly attempt to run back across the road? Under somewhat similar circumstances a verdict for the defendant was upheld in Richardson v. Barrett, 90 Ga. App. 714 ( 84 S.E.2d 120). There, however, the defendant stopped almost instantly and without skidding; here the defendant had his car under control to the extent that, under his testimony, he stopped after skidding 100 feet, but the child ran into his path when he was less than half this distance away and thus unable to stop. "A motorist, in approaching children on the street, must consider their tenderness of age and the probability of their making sudden and erratic movements peculiar to such age as factors calling for greater caution than would be necessary on the discovery of adults in the same situation. He is not justified in assuming that a child will exercise the same degree of care for his safety as an adult would under the circumstances, nor is he justified in presuming that a child near highway will remain in place of safety." Blashfield, Cyclopedia of Automobile Law and Practice, Vol. 2A, p. 402, § 1497; Mainz v. Lund, 18 Wis.2d 633 ( 119 N.W.2d 334); McGough Bakeries Corp. v. Reynolds, 250 Ala. 592 ( 35 So.2d 332); Paschka v. Carsten, 231 Iowa 1185 ( 3 N.W.2d 542); Price v. Burton, 155 Va. 229 ( 154 S.E. 499). See also Glover v. Dixon, 63 Ga. App. 592, 598 ( 11 S.E.2d 402). "Motorists owe very young children a greater duty than they owe to normal adults. 38 AmJur 685, § 40; 14 ALR 1180; 67 ALR 317; Huckabee v. Grace, 48 Ga. App. 621 ( 173 S.E. 744); Cohn v. Buhler, 30 Ga. App. 14 ( 116 S.E. 864); City Ice Delivery Co. v. Turley, 44 Ga. App. 32 ( 160 S.E. 517)." Christian v. Smith, 78 Ga. App. 603, 606 ( 51 S.E.2d 857). Under all the circumstances, the question is for jury determination and the trial court properly denied the motion for summary judgment.
2. We have examined the appellant's various objections to an affidavit offered by appellee. Since the case is decided without reference to this affidavit, and since none of the objections urged to it will affect the trial of the case, it is unnecessary to consider them further.
Judgment affirmed. Jordan, P. J., and Pannell, J., concur.