Doss v. Miller

• Decision Date: 21 October 1952
• Docket Number: No. 2,No. 34302,34302,2
• Citation: 73 S.E.2d 349,87 Ga.App. 230
• Court: Georgia Court of Appeals
• Parties: DOSS et al. v. MILLER et al

Page 349

73 S.E.2d 349

87 Ga.App. 230

DOSS et al. v. MILLER et al.

No. 34302.

Court of Appeals of Georgia, Division No. 2.

Oct. 21, 1952.

Rehearing Denied Nov. 19, 1952.

Syllabus by the Court.

1. Where a husband furnishes an automobile for the comfort and pleasure of his family, and where his wife, a member of his family, in operating this automobile to transport the plaintiff and her own child to and from school is negligent, which negligence results in the plaintiff's injury, such negligence is imputable to the husband and he is liable therefor under the family-purpose-car doctrine.

2. Where the operator of an automobile, in which the plaintiff has been riding daily to and from school, parks the same on the wrong side of the street and across the street from the schoolhouse, and more than six inches from the curb, in violation of a municipal ordinance, and permits the plaintiff, a child around 7 years of age, to get out of the car and start across the street, during a rain, and at a time when the children are being let out of school and other motor vehicles are likely to be using this street, and this child in so doing is struck by another automobile, being negligently operated, a jury question is presented as to whether or not the driver of the car striking her is negligent and whether such negligence contributed to the plaintiff's injury.

Virginia Ann Miller, an infant, 7 years of age, by her father R. A. Miller, as next friend (hereinafter called the plaintiff), brought suit in DeKalb Superior Court against Mrs. Sarah L. Sechler, Mrs. Arthur Doss, and her husband, Arthur Doss, (hereinafter called the defendants) to recover damages for certain personal injuries sustained by the plaintiff as a result of the alleged negligence of the defendants. It appeared from the allegations of the plaintiff's petition that on March 18, 1952, she was a student at the Kirkwood Public School in the City of Atlanta; that on said date around 1:40 p. m., after having been dismissed from such school for the day, the plaintiff had entered the automobile of the defendant, Mrs. Arthur Doss, with whom she had been accustomed to ride to and from said school; that Mrs. Arthur Doss parked their automobile across Kirkwood Road from said school building, headed in a southerly direction, necessitating the crossing of that road in order to reach the school; that at said time many children were getting out of said school building and were crossing the street; that it was a dark, murky and rainy day; that the plaintiff informed the said Mrs. Doss that she must return to the school building and must go back across the street; that the plaintiff disembarked from the car on the left side, next to the curb, and walked to the back of the car, and then started to cross said street, proceeding from behind the automobile of Mrs. Doss, when she was struck by an automobile being driven by Mrs. Sarah L. Sechler, which was proceeding south on said Kirkwood Road, the same direction in which Mrs. Doss's car was headed; that the car of Mrs. Sechler was being operated approximately in the middle of the road and did not stop to wait until Mrs. Doss drove her car forward or over on to the proper side of this road, which was her right-hand side, but the front of Mrs. Sechler's car struck the plaintiff as she reached the above described point; that some fifty to a hundred school children were walking and running across this street with their heads down, it raining at the time; that Mrs. Sechler operated her automobile at said time without having same in proper control and at a speed which was greater than was reasonable and safe, having due regard to the conditions then existing, and she did not sound her born, but approached the car of Mrs. Doss, which was transporting children while same was stopped and engaged in taking on and discharging school children therefrom; that Mrs. Doss failed to place her automobile, with its right side near the curb, which would have been on her right side of said road, but placed same where the left side thereof was near the curb and on the left side of said road; that Mrs. Doss permitted the plaintiff to leave her automobile and go across the street towards said school house, with full knowledge that Mrs. Sechler and others were driving to and fro upon this road; that, had Mrs. Doss parked her automobile on the right side of said road, the plaintiff would not have been injured; and that said Kirkwood Road where this took place is in the City of Atlanta. It was further alleged in the petition that the defendant Mrs. Doss parked her automobile within 30 feet of the entrance to said school building; that the defendant Arthur Doss kept and maintained said automobile, so operated by Mrs. Doss, for the use and comfort of his family, and that she was engaged in using the same for the purposes of the family in transporting her child and other children from this school on the date in question; that under this doctrine the defendant, Arthur Doss, is liable for any negligence of Mrs. Doss in the operation of his automobile; that Mrs. Doss was using this automobile at said time and place to carry school children to and from said school building, and upon and over the streets of said city, for which transportation the plaintiff's father paid to Arthur Doss and his wife the sum of ten cents per day. It was set out in the petition that the plaintiff was injured by reason of the negligence of the said defendants, and that Mrs. Doss was negligent in the operation of her car in the following particulars: (a) in parking her car on the left side of the street and so as to cause the plaintiff to cross Kirkwood Road in coming to and from said automobile; (b) in failing to park her car and stop the same on the right side of said road in such a place that the plaintiff, in entering and leaving the same, would not be exposed to the possibility of being run over by automobiles operating on Kirkwood Road; (c) in permitting the plaintiff to leave the automobile and go across the street towards the school building, with full knowledge that others were driving their automobiles to and fro in front of the school building, and while the automobile being operated by Mrs. Doss was illegally parked; (d) in stopping and parking her automobile in a roadway other than parallel with the edge of the road ahead in the direction of lawfull traffic movement, and with the right hand wheels of the automobile on the left side of the road, and not within six inches of the curb, same being in violation of City of Atlanta Code 88-1201 and is negligence per se; (e) in stopping, standing, and parking said vehicle within a space of 30 feet in front of the entrance of said school building in violation of the Code of said city, section 88-1301, and is negligence per se; and (f) when the automobile was not in motion, in failing to place the right side thereof as near to the right side of the highway as practicable, in violation of Code, § 68-303, and is negligence per se. The plaintiff also alleged that the defendant Mrs. Sechler was negligent in various particulars, which need not be set out herein.

The defendants Mrs. Arthur Doss and Arthur Doss demurred to the petition, generally, contending that it did not appear that their negligence, if any, was the proximate cause of the plaintiff's injury, but that the plaintiff's injury was due to being struck by the car of Mrs. Sechler. The defendant Mrs. Sechler did not demur to the petition. The trial judge overruled the demurrer of Arthur Doss and Mrs. Arthur Doss, and to this judgment the defendants excepted.

Dunaway, Howard & Embry, Atlanta, for plaintiff in error.

Moise, Post & Gardner, Fraser & Shelfer and Hugh E. Wright, Atlanta, for defendant in error.

GARDNER, Presiding...