Gazaway v. Nicholson

• Decision Date: 21 October 1939
• Docket Number: No. 27799.,27799.
• Citation: 5 S.E.2d 391
• Parties: GAZAWAY et al. v. NICHOLSON et al.
• Court: Georgia Court of Appeals

5 S.E.2d 391

GAZAWAY et al.

v.NICHOLSON et al.

No. 27799.

Court of Appeals of Georgia, Division No. 2.

Oct. 21, 1939.

Rehearing Denied Nov. 4, 1939.

Syllabus by the Court.

1. The petition set forth a cause of action against the driver of the bus and his employer, plaintiffs in error in this court, and the trial judge did not err in overruling their general demurrer.

2. Under the law and the evidence the jury was authorized to return a verdict against the defendants, plaintiffs in error in this court.

3. None of the grounds of the motion for new trial is meritorious.

FELTON, J., dissenting.

Error from Superior Court, Whitfield County; J. H. Hawkins, Judge.

Action by Robert Nicholson, by his next friend, and others, against Milton Gazaway and others, for injuries sustained by the named plaintiff when he was struck by an automobile. To review a judgment overruling general demurrer and judgment overruling motion for new trial, defendants Milton Gazaway and Noah Johnson bring error.

Affirmed.

R. Carter Pittman and Jack B. Ray, both of Dalton, for plaintiffs in error.

Wm. E. Mann, W. G. Mann, and D. W. Mitchell, all of Dalton, and Silas Williams, of Chattanooga, Tenn., for defendants in error.

SUTTON, Judge.

Robert Nicholson, a minor eight years of age, by his father, J. R. Nicholson, as next friend, brought suit against Milton Gazaway, Noah Johnson, Allyn & Bacon Book Publishing Co. and Farrar W. Bond to recover damages on account of the alleged joint and concurrent negligence of the defendants, the petition alleging that prior to and on September 14, 1937, the defendant Milton Gazaway owned and operated a school bus for the purpose of transporting school children to and from Valley Point Consolidated School in Whitfield County, Georgia; that on September 14, 1937, Noah Johnson was operating and driving said school bus at the instance and under the direction of the defendant Milton Gazaway for the purpose for which it was maintained and operated, the transportation of school children from Valley Point Consolidated School in said county, and was the agent and chauffeur of said Gazaway on the date and the occasion of the injuring of the plaintiff, and that all of the acts of negligence charged against the defendant Johnson are charged as acts of negligence on the part of the said Gazaway; that prior to and on September 14, 1937, the defendant Bond was the agent and alter ego of the defendant Allyn & Bacon Book Publishing Co., as traveling representative and within the scope of his authority representing the publishing company, and all of the acts of negligence charged against the said Bond are charged as acts of negligence against the publishing company; that on September 14, 1937, plaintiff had attended Valley Point Consolidated School in said county and had ridden south in the school bus of the defendant Gazaway being operated on said occasion by the agent, chauffeur and driver of Gazaway under his direction and at his instance, to-wit, Noah Johnson, whose duty it was to transport school children safely from their homes to school and from school to their homes; that on said date, at about 1.30 p. m. o'clock, the driver of the said bus stopped the same, not at the Carbondale Road just south of plaintiff's home as was customary and safest, so that plaintiff would not have to cross the Dixie Highway at a point ten miles south of Dalton, Georgia in said county, but on the left or east side of the said Dixie Highway for the purpose of unloading school children, among whom was the plaintiff, and in order for plaintiff to get to the home of his father, J. R. Nicholson, on the west side of the said highway it was necessary for plaintiff to cross the said highway, all of which was well known to the driver of the school bus and who, without accompanying said children so alighting from said bus, including the plaintiff, allowed them to alight on the road in the most thickly and constantly traveled public highway in the State and County; that plaintiff alighted from the bus, and others were alighting therefrom, and plaintiff was attempting to cross the highway, and had passed the center of the highway going to his home on the west side thereof and was on the west side of the center line of the highway at a point just opposite the home of his father and just south of the intersecting Carbon-dale Road when and at which time the automobile of the defendant publishing company, being operated by the said Bond within the scope of his employment and about the business of his employer, headed north on said highway, crossed the intersecting Carbondale Road at a speed of fifty miles and more per hour, and passed said school bus, so unloading school children, at said rate of speed and said Bond drove on the left side of the center line of the highway, on the side, and ran said automobile into, on and over the body of plaintiff, inflicting upon him certain described severe, painful and permanent injuries; that the said bus driver remained in his seat which was high above the road and which gave him a clear vision of automobiles approaching from the south, and while said bus driver was so parked on the left side of the road discharging school children, including the plaintiff, in violation of the laws of this State, he saw the approaching automobile being driven by the defendant Bond and discharged said school children, including the plaintiff, in said highway into the path of the oncoming car of Bond; that the said operator of the school bus, being a carrier of passengers for hire, owed plaintiff the duty of extraordinary care and diligence in putting him off in a safe place, and said defendant Johnson was guilty of negligence per se in discharging plaintiff on the left side of the road and highway, and was further negligent and careless in discharging him into said thickly traveled highway and into the path of the oncoming automobile being operated by said Bond as aforesaid; that at the time of the inflicting of said injuries plaintiff was free from fault, and his injuries were caused solely, directly and proximately by the joint trespasses and torts of the said joint tort feasors, defendants herein; that the said defendants were joint trespassers and joint tort feasors and were negligent and careless, as follows: (a) That the said Gazaway was negligent and careless and wanting in ordinary care in permitting an unskilled driver, Noah Johnson, to operate and drive said school bus filled with small school children; (b) said Gazaway and his agent Johnson were negligent and careless and wanting in ordinary care in stopping said school bus on the left side of the Dixie Highway, a populously traveled highway, on the left side of the road and just northof an intersecting highway, to-wit, the Carbondale public road, and unloading small school children, including plaintiff, in said highway without assisting them in getting off of the school bus into a safe place; (c) said driver of said school bus was negligent and careless in remaining in the bus while letting small school children, including plaintiff, alight into the public highway from the bus; (d) in not stopping said bus and discharging the school chil-drent at a safe point, to-wit, at a point where plaintiff could get to his home without alighting into said populously traveled highway; that all of the said acts and failures to act, on the part of the said Johnson and Gazaway, contributed to and constituted joint acts of trespass and joint tort feasors, which, together with the joint trespasses and joint torts of the joint tort feasors, Allyn & Bacon Book Publishing Co. and Farrar W. Bond, contributed to and brought about the injury and damage to plaintiff; that the joint trespasses and joint acts of negligence and carelessness on the part of the defendants, Allyn & Bacon Book Publishing Co. and Farrar W. Bond, contributing to said injuries, all of which directly proximately, as aforesaid, brought about said damage, are as follows: (a) Said defendants, Allyn & Bacon Book Publishing Co. and Farrar W. Bond, were negligent and careless in operating said car at an excessive rate of speed, to-wit, fifty miles per hour and more, across an intersecting public road which crosses a thickly traveled State road, the Dixie Highway; (b) in operating said car by a school bus with large letters thereon unloading school children and in ignoring the word "Stop" in large letters thereon; (c) in operating said car the driver passed the bus without having the car under immediate control; (d)in operating the said car on the left side of the center of the highway; (e) in not stopping said car before striking and injuring plaintiff; (f) the driver was negligent per se in passing said bus while it was discharging the school children--all of said acts and failures to act on the part of the said defendants constituting joint trespasses and joint torts on plaintiff and bringing about his injuries and damage.

The defendants Gazaway and Johnson filed a general demurrer on the ground that no cause of action was set forth against them, which was overruled, and exceptions pendente lite were duly certified and filed. They also filed an answer denying the material allegations and especially plead that the bus did not stop on the highway but was driven to the left thereof and on the grounds of a nearby filling station at a distance of four feet from the highway, that the child had safely alighted and the relation of passenger and carrier had terminated before he was injured on the highway, and that his injuries were due solely to the negligence of the driver of the automobile which struck him.

As shown in Allyn & Bacon Book Publishers v. Nicholson, 58 Ga.App. 729, 199 S.E. 771, 772, the defendants, the publishing company and Bond, the driver of the automobile, filed a general demurrer, which was overruled, and on appeal to this court it was held that the petition set out a cause of action against them. Thereafter the case...