Opinion
35342.
DECIDED SEPTEMBER 30, 1954.
Damages. Before Judge Flournoy. Polk City Court. May 18, 1954.
Dan Winn, Raymond Reed, for plaintiff in error.
Stewart York, contra.
1. It is axiomatic, requiring no citation of authority, that questions of negligence, except in plain and indisputable cases, are for the jury to determine; and, under the facts and circumstances of this case, it was for the jury to say whether or not the defendant's driver exercised the degree of care required of him toward the child of five at the time and place of the alleged injuries to the child.
2. It is the duty of appellate courts in this State to construe the evidence most strongly in support of a jury verdict which has been approved by the trial judge ( Associated Mutuals, Inc. v. Pope Lumber Co., 200 Ga. 487, 496, 37 S.E.2d 393; Brown v. Meador, 83 Ga. 406, 9 S.E. 681); and if there be, under such a construction, any evidence to support the material issues in the case, this court will not reverse the judgment denying the motion for a new trial, based solely on the general grounds. First Joint Stock Land Bank of Montgomery v. Sasser, 185 Ga. 417 ( 195 S.E. 143).
3. Under an application of the foregoing rules of law, the evidence authorized the verdict. The jury was authorized to find that the defendant's agent and servant was driving the defendant's truck south on Marshall Street in the City of Cedartown at a speed of 20 miles per hour, or less, in violation of no State law or city ordinance; that he was keeping a proper lookout ahead, and saw the children, of whom the plaintiff was one, playing, in a place of safety, on the sidewalk on the west side of the street, when the truck was some 200 feet distant from them; that he had the truck under control and stopped it instantly when he saw the child dash into the street; that he struck the child with the right front headlight of the truck when he was a distance of only five or six feet from the curb; that he did not cause skid marks on the pavement when he applied the brakes, and the child was thrown only four or five feet by the impact; and that, although he did not sound the horn or reduce the speed of the truck as he approached, the child did not dash into the street until the truck was so near him that it was impossible to have avoided striking him; and that consequently the defendant's driver did all that was required of him in the exercise of ordinary care under the circumstances and was not guilty of the negligence charged in the petition.
The trial court did not err in denying the motion for a new trial, based solely on the general grounds.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.
DECIDED SEPTEMBER 30, 1954.
Barry Ted Richardson, a child of five years of age at the time the cause of action arose, brought an action by his mother, as next friend, for damages for enumerated personal injuries against Curtis Barrett, doing business as Ed's Cleaners. The material allegations of the petition are substantially as follows: On or about May 30, 1952, Bobby Griffin was driving a laundry truck, as agent of the defendant, in a southerly direction on Marshall Street in the City of Cedartown, Georgia. The plaintiff lived with his parents on that date on the east side of Marshall Street, and just prior to the time he was struck by the defendant's truck, he was on the west side of Marshall Street, directly in front of his home. At that time and for a short time prior thereto, the plaintiff had been playing and running around with three or four other small children on the west side of Marshall street, which runs generally north and south. As the defendant's laundry truck proceeded south along Marshall Street, the plaintiff child, in the course of his running around in play, ran into the street; and, when he was about five or six feet from the west curb of the street, he was struck violently by the right front headlight of the laundry truck and knocked or hurled a distance of some 30 feet from the point of impact. The driver of the truck saw, or in the exercise of ordinary care, should have seen the children along the sidewalk on the west side of and immediately adjacent to the street as he was approaching. The driver of the laundry truck did not give any warning, by horn or otherwise, as he approached the children. The driver did not reduce the speed of the laundry truck as it approached the children. He was negligent, in that he did not give any warning by horn or otherwise as he approached the children as was required under the circumstances in the exercise of ordinary care, and he was likewise negligent in failing to reduce the speed of the truck. Bobby Griffin was operating the truck at the time as the agent of the defendant and in the regular course of his duties and in the scope of his employment by the defendant. There was in force in Cedartown at the time a valid ordinance which prohibited the operation of motor vehicles in the city at a speed greater than 25 miles per hour. The defendant was negligent as a matter of law, in that the truck was being operated at a speed of from 30 to 35 miles per hour at the time he struck the plaintiff. The defendant was negligent, in that he was traveling above 10 miles per hour in approaching the children, as that was the maximum speed at which a person in the exercise of ordinary care would have approached the point adjacent to where the children were playing. The defendant was negligent, in that the driver of the truck failed to keep a constant and vigilant lookout ahead as he approached the point adjacent to where the children were playing, as was required under the circumstances in the exercise of ordinary care. Each and all of the negligent acts and omissions contributed to and caused the plaintiff's enumerated injuries.
On the trial of the case the jury returned a verdict in favor of the defendant. The plaintiff's motion for a new trial, based solely on the general grounds, was denied, and he has brought the present writ of error to have that judgment reviewed.