Opinion
33659.
DECIDED JULY 16, 1951. REHEARING DENIED JULY 30, 1951.
Damages; from Albany City Court — Judge Monk presiding. May 11, 1951.
James V. Davis, E. A. Landau Jr., Farkas Burt, for plaintiffs in error.
S. B. Lippitt, contra.
The plaintiff's petition, as amended, alleged facts from which a jury would be authorized to find that the defendants were negligent and that this negligence caused the death of the plaintiff's son, in that the driver of their truck operated the same negligently while in and about their business. The court properly overruled the general demurrer as well as the special demurrers to the petition as amended.
DECIDED JULY 16, 1951. REHEARING DENIED JULY 30, 1951.
Mrs. J. L. Brunson, hereinafter called the plaintiff, filed in the City Court of Albany, her petition against Marvin C. Long and Harvey J. Cohen, hereinafter called the defendants, doing business as Southern Diaper Service, in which she sought to recover damages on account of the homicide of her son, James B. Brunson, alleged to have been caused by the negligence of Daniel Thomas Pelham, the driver of the defendant's truck, and the servant of the defendants, acting in and about their business and within the scope of his employment at the time herein involved. By amendment the plaintiff struck the major portion of the petition and in lieu thereof amplified the allegations of her petition as to the manner in which her son was killed and as to the alleged negligence of the driver of the truck. It appeared from the amended petition that around 3:15 p. m. on February 7, 1951, her son, age 14 years, was crossing on foot over the Albany-Cordele paved highway, at a point about a mile north of Adams Inn, and when he had gotten to about one foot from the curb on the left side of said highway, going toward Albany, he was struck by this truck and instantly killed. The plaintiff alleged that her son proceeded across the road with his face towards Albany and his back towards Cordele; that this highway was 22 feet and 6 inches wide and was an unobstructed highway; that he was struck by this truck travelling toward Albany from the direction of Cordele at an illegal, dangerous and reckless speed and in excess of 55 miles an hour; that the highway was straight and unobstructed at this point; that said truck ran into the plaintiff's son from the rear after the truck had crossed over the white center line in the road to the left side thereof, striking her son as aforesaid; that the driver of the truck could and did see her son, it being broad daylight, for a distance of at least 200 yards on said straight and unobstructed highway, and while travelling at about 65 miles an hour struck him on the left side of the highway as to said truck; that the defendants were negligent and failed to exercise ordinary care, which was the proximate cause of the death of the plaintiff's son, in the following particulars: (a) Because the driver of defendant's Dodge truck at said time and place was operating same at a speed greater than was reasonable and safe, having due regard to the conditions then existing, including the width, grade, character, traffic and common use of said highway, so as to endanger life and limb, and in violation of Code § 68-301 (a), same being negligence per se. (b) Because the driver of said truck was operating same in excess of 55 miles an hour in violation of Code § 68-301 (b), same being negligence per se. (c) Because the driver of said truck at said time and place, and on said unobstructed and straight highway, approached a person walking therein, without having the truck under immediate control in violation of Code § 68-304. (d) Because the driver of said truck drove along said highway in broad daylight without keeping a sharp lookout ahead, as was his common-law duty to do, striking and killing her said son. (e) Because the driver of said truck could see her son on said highway for a distance of at least 200 yards and did not slow the speed of the truck and did not have same under control, so as to avoid running into her son on the left side of the road. (f) Because the driver of the truck failed to exercise ordinary care in not driving on his right side of the road and in crossing over the white center line in the highway to the extreme left side thereof and striking and killing plaintiff's son. (g) Because the driver of the defendants' truck failed to exercise ordinary care in that he did not anticipate and detect the presence of plaintiff's son on said highway and avoid striking him. (h) Because the driver of the truck failed to apply his brakes and avoid striking said child. (i) Because the driver of the truck failed to exercise the proper care and diligence by driving said truck in broad daylight on a straight, public, paved and unobstructed highway, at a dangerous, illegal and excessive speed in excess of 55 miles an hour, without keeping a proper lookout ahead of him and in crossing over from the right side of said highway over the white center line to the extreme left side thereof, without applying his brakes, and running into and striking plaintiff's son, a pedestrian, who was on the left side of the road, with his back turned and facing Albany, in the same direction the truck was traveling. (j) Because the defendants were further negligent, in that the driver of the truck did under the circumstances and conditions herein set out, overtake another vehicle going in the same direction, a small motorcycle, and did attempt to pass same to the left thereof, when the way ahead was not clear and the width of the highway was not sufficient to allow said truck to pass to the right of the center thereof in the direction in which he was traveling.
The defendants demurred to said petition as amended generally as stating no cause of action, and because same shows that the plaintiff's son failed to exercise ordinary care, which was the proximate cause of his injury; and because same shows that her son was grossly negligent and same was the proximate cause of his injury; and because it appears that her son could have seen the approach of the truck for 200 yards or more, and he failed to use proper care in attempting to cross the highway at said time and place; and because he was grossly negligent in attempting to cross said highway as he did, and was bound to anticipate the danger of approaching automobiles; and because the petition does not show that when the plaintiff's son started across the road he did not know that automobiles were likely to be approaching and no facts are alleged showing that he did not know that this truck was approaching from the north as he attempted to cross ahead of it; and because it appears from the amended petition that there was present at said time and place sufficient warning to cause an ordinarily prudent person to apprehend the danger in crossing said highway. The defendants also demurred specially to various paragraphs of the amended petition.
The trial judge overruled said demurrers, general and special, and to this judgment the defendants except.
The petition as amended alleged facts tending to show that her son, age 14 years, was crossing a public highway, which was straight and unobstructed, and that he was in plain view to approaching automobiles from the north; that he had his back turned towards the north; that after he had gotten within one foot of the other side of the road, the left side thereof going towards Albany, the direction in which the truck of the defendants was travelling, the defendants' truck swerved to the left over the center white line of the highway and over the extreme left and struck the plaintiff's son as he was about to step upon the curb on the other side thereof. The petition alleges that the driver did not have the truck under control, did not apply his brakes, did not keep a proper lookout ahead, and drove same at an unlawful speed. It was also alleged that he was negligent in attempting to pass the motorcycle going in the same direction when the way was not clear, the son of the plaintiff being in plain view with his back turned, and the road being narrow at this point, only 22 feet and 6 inches wide. In these circumstances, it cannot be said that it appears from the petition as amended that no cause of action is set forth. Furthermore, it does not appear as a matter of law that the death of the plaintiff's son was caused by his own failure to exercise ordinary care in the premises. He had a right to cross this highway at this point.
The plaintiff sets up facts tending to show a violation of certain provisions of the Georgia Motor Vehicle Laws, as embodied in Code (Ann. Supp.) §§ 68-301 (a), (b), 68-304 and 68-303 (d), and alleges that the same contributed to and resulted in the death of her son. There is no merit in the contention that it appears from the petition that these acts of negligence did not result in the death of the plaintiff's son.
The petition alleged facts sufficient for submission to a jury as to whether the driver of the defendants' truck was negligent in attempting to pass this motorcycle with the plaintiff's son in plain view and the highway being narrow. The petition alleged facts from which the jury might find the defendant negligent in not seeing the plaintiff's son crossing this highway, which was straight and unobstructed at this point, and also in traveling at said time and place, when he saw or ought to have seen her son, at a fast and reckless speed in excess of the 55 miles an hour permitted by the law.
This court has held that "a pedestrian and a person with an automobile have each the right to use the public highways but the right of an operator of an automobile upon the highways is not superior to the right of the pedestrian, and it is the duty of each to exercise his right with due regard to the corresponding rights of the other, and also that a pedestrian when using the highway is not bound to be continually looking and listening to ascertain if automobiles are approaching, and if he fails to do so, he is not as a matter of law conclusively so negligent as to prevent a recovery, where the driver of the car is negligent. See O'Dowd v. Newnham, 13 Ga. App. 220 ( 80 S.E. 36); Eubanks v. Mullis, 51 Ga. App. 728 ( 181 S.E. 604). This court has held that the law of the road does not restrict a pedestrian to any particular part of a highway or street for the purpose of travel, but he may cross such highway at any place he desires, if he uses due care, and the operator of an automobile approaching along such highway must anticipate the possibility that pedestrians on the highway may cross over the same. The driver of a car has no right to assume that the road ahead of him is clear, but he must keep a vigilant lookout ahead for pedestrians on the road. Claxton v. Hooks, 68 Ga. App. 383 ( 23 S.E.2d 101).
The plaintiff's petition was not subject to demurrer because she did not set out therein facts clearly averring that her son was without fault or that by the exercise of ordinary care he could have avoided the injury. See Collins v. Augusta-Aiken Ry. c. Corp., 13 Ga. App. 124 ( 78 S.E. 944).
It is true that a person may drive upon the left side as well as his right side of the highway without being negligent. However, before getting off the right-hand side, he should ascertain that the way ahead of him is clear and that there is no person walking across same on the left side that he might strike. See McGee v. Young, 132 Ga. 606, 608 (4) ( 64 S.E. 689). As stated, the driver of an automobile has no right to assume that the road ahead of him is clear, but must keep a vigilant lookout for pedestrians and other traffic ahead of him. In O'Dowd v. Newnham, supra, this court held that if a pedestrian is properly upon the public highway, he has the right to assume that the drivers of approaching cars are on the lookout for him. The plaintiff's petition was not subject to general demurrer because it appeared therefrom that her son was negligent and such negligence caused his death or because she failed to allege facts showing that he was not negligent but was in the exercise of proper care for his own safety.
There were sufficient facts alleged tending to show that under the circumstances the defendants' truck driver was negligent in approaching where the plaintiff's son was crossing this highway at a fast and reckless speed, and in attempting to pass the other motor vehicle going in the same direction and swerving over the center line of the highway to the extreme left side thereof in attempting so to do, where the highway was straight and unobstructed at this point, and also where, under the facts, he either saw or ought to have seen the plaintiff's son, who had almost reached the left-hand curb when struck by the truck. These allegations are enough to carry the case to the jury. It does not appear that the plaintiff's son saw this approaching truck or had reason to know it was coming.
Questions of what amounts to negligence and what is the proximate cause of an injury, address themselves to the determination of the jury, and this court will decline to solve them except in plain and indisputable cases. Atlantic Coast Line R. Co. v. Daniels, 8 Ga. App. 775 ( 70 S.E. 203); Rome Ry. Light Co. v. King, 30 Ga. App. 231 ( 117 S.E. 464), and cit. This is not a case where the questions of negligence raised by the plaintiff's petition as amended are so plain and indisputable that this court will undertake to determine the same as a matter of law, but the petition as amended makes a case to be passed upon by the jury.
Furthermore, as to any alleged negligence of the plaintiff's son in crossing this highway at said time and place, it appears that, without the alleged negligence of the driver of the truck, he would not have been injured, and it does not appear that his being killed was the proximate cause of his failing to exercise due care for his own protection in the premises. Also we do not have in this State the contributory-negligence doctrine, but the comparative-negligence doctrine, and if the jury found the plaintiff's son to be negligent, but that the negligence of the driver of the truck was greater than that of the plaintiff's son, she would still be entitled to recover of the defendants.
The plaintiff's petition alleges sufficient facts to be submitted to a jury as to the alleged negligence of the driver of the truck and was not subject to general demurrer on any of the grounds urged. The judgment of the court overruling the special grounds of demurrer, under the view which we take of this case, fails to show error. The court properly overruled the demurrers of the defendants, general and special.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.