Christian v. Smith

• Docket Number: 32296.
• Decision Date: 11 February 1949
• Citation: Christian v. Smith, 78 Ga.App. 603, 51 S.E.2d 857, 32296. (Ga. App. Feb 11, 1949)
• Parties: CHRISTIAN v. SMITH.
• Court: Georgia Court of Appeals

51 S.E.2d 857

78 Ga.App. 603

CHRISTIAN v. SMITH.

No. 32296.

Court of Appeals of Georgia, Division No. 1.

February 11, 1949

Syllabus by the Court.

1-8. The court did not err in overruling the general demurrer to the petition nor in denying a new trial on the general and special grounds of the motion for a new trial.

Mrs Mary Hatcher Smith sued Glover L. Christian to recover damages for the alleged tortious homicide of her five year old daughter. The petition as amended substantially alleged the following: That on February 10, 1947, at about 11:30 a m. your petitioner and her child alighted from an automobile operated by Mrs. R. Holmes Mason at a point located on the west side of Vineville Avenue and also known as Route 41 from Macon, Georgia to Atlanta, Georgia, and almost opposite an intersecting street known as Vista Circle and just south of a restaurant known as Bloodworth's Restaurant. That the point where petitioner and her child alighted is approximately 70 feet east of the mainline tracks of the Central of Georgia Railway Company, which tracks run practically parallel to Vineville Avenue at that point. That Vineville Avenue at said point is approximately 35 feet wide, covered with a black top hard surface, without curbing and sidewalks, and on the east side of said avenue and adjacent thereto is a gravel surfaced area for use of drive-in patrons of Bloodworth's Restaurant. That from said point the avenue is practically straight in a southerly direction for a distance of approximately 400 feet. That within an area of about 400 feet north and south from said point, there are located several business establishments, and also residences, which together with the intersecting street known as Vista Circle makes this area congested and hazardous. That the Department of Public Safety of the State of Georgia, by virtue of the authority given it by the Act approved March 24, 1939, Georgia Laws 1939, p. 295 et seq., has fixed a special maximum speed restriction of 30 miles per hour through said area, and has put the same in effect by erecting proper highway signs both north and south of said area, giving notice of said restriction. That on said date the defendant rented and used in the course of his business a 1942 ton and one half Chevrolet truck and trailer which at that time was being driven by one Eddie Jones, who was an employee of the defendant, acting in the furtherance of the defendant's business of hauling lumber. That at the same time plaintiff and her child alighted from the automobile, defendant's truck and trailer were proceeding in a northerly direction along said Vineville Avenue. That immediately after so alighting from said automobile, they turned and started in the direction of a waiting Georgia Power bus which was parked approximately 15 feet to the rear of said automobile on Vineville Avenue. That the car from which they had alighted turned to the right and entered the gravel surfaced area of the eating establishment above described, thus affording an unobstructed view between defendant's truck and plaintiff and child who continued their course with their backs turned to said truck and trailer. That as said child reached a distance of about two feet from the door of said bus, a train then proceeding on the track above described, suddenly ran by and its loud noise frightened said child, causing her to run out into said avenue. That the child was ignorant of the approach of the truck, which was approaching at a speed of 35 miles per hour or more, without warning. That notwithstanding the unobstructed view of the child and the course she was pursuing, said driver did not reduce speed, change his course, sound his horn, or make any effort to avoid striking said child until the child had reached the center of the avenue, and then he made only a slight reduction of speed and deviation of course of his truck which did not materially affect the course of the trailer. That said child still not having seen said truck and trailer, continued her course to a point approximately three feet east of the center line of said avenue, and the left wheel of the defendant's trailer, without its course having ever been changed, ran over and instantly killed your petitioner's child. That after running over said child, the driver proceeded with his truck and trailer for a distance of about 75 feet before stopping. That the proximate cause of the death of the child was the following acts of negligence of the defendant's driver: (a) In operating said truck and trailer at a speed of 35 miles per hour, which speed was greater than was reasonable and safe under the surrounding circumstances; (b) In operating said vehicle at a speed of 35 miles per hour in violation of the 30 mile per hour maximum speed as fixed by the Department of Public Safety; (c) In failing to reduce speed and otherwise to get the truck and trailer under control after it became apparent to him, or should have become apparent to him, that said child was about to come into the path of his truck and trailer; (d) In failing to keep a sharp and proper lookout; (e) In failing to avoid striking said child after her presence in said street was seen or should have been seen; (f) In failing to sound his horn or make any alarm of any kind to warn said child of the impending danger of the approach of his truck and trailer.

The defendant denied the material allegations of the petition and alleged that the child's death was proximately caused by the negligence of the plaintiff and her child and that they could have avoided the consequences of the defendant's negligence by the exercise of ordinary care, that the negligence of the plaintiff and her child was greater than that of defendant, and finally that the death of the child was due to an accident. Defendant also filed general and special demurrers, all of which were overruled by a judgment to which exceptions pendente lite were filed. The jury found for the plaintiff.

The defendant's motion for a new trial was overruled. He here excepts to the overruling of the demurrers and the overruling of the motion for a new trial. As exceptions to the overruling of the special demurrers are not argued they will not be considered.

Harris, Harris, Russell & Weaver, of Macon, for plaintiff in error.

Benning M. Grice, of Macon, for defendant in error.

FELTON Judge.

1. The court did not err in overruling the general demurrer to the petition, nor in overruling the motion for a new trial on the general grounds. The burden of the defendant's argument on these questions is that no negligence on the part of the defendant was alleged or proved with the exception that the jury was authorized to find that defendant...