Glover v. Dixon

• Decision Date: 28 October 1940
• Docket Number: No. 28461.,28461.
• Citation: 11 S.E.2d 402
• Parties: GLOVER. v. DIXON.
• Court: Georgia Court of Appeals

11 S.E.2d 402

GLOVER.

v.DIXON.

No. 28461.

Court of Appeals of Georgia, Division No. 2.

Oct. 28, 1940.

Rehearing Denied Nov. 16, 1910.

Syllabus by the Court.

The petition set forth a cause of action, and the court did not err in overruling the defendant's general demurrer.

SUTTON, J., dissenting.

Error from City Court of Savannah; Alex R. MacDonell, Judge.

Suit by Mrs. O. F. Dixon against James N. Glover, doing business under the name of Nehi Bottling Company, to recover damages for the death of the plaintiff's infant son who received fatal injuries when run over by a truck owned by the defendant. To review a judgment overruling defendant's general demurrer and certain special grounds of demurrer, the defendant brings error.

Judgment affirmed.

Mrs. O. F. Dixon brought suit against James N. Glover, doing business under the name of Nehi Bottling Company, to recover damages for the full value of the life of her infant son on account of the homicide of the child. The petition, stripped of certain allegations on special demurrer, further alleged that at the time of the homicide complained of the defendant was engaged in the business of bottling and selling various beverages, and in connection with same operated several automobile trucks, among them being the truck involved in the homicide complained of, and which consisted of a cab and flat, wooden body approximately 22 feet long, the truck and body being painted in bright colors and bearing signs and advertising matter printed in brilliant lettering, the whole being designed to and does attract attention; that the floor of the body of the truck is approximately 36 inches from the ground, and is wide enough to extend over the rear wheels; that the running board extends only as far as the rear edge of the cab, but that approximately 2¹/₂ feet behind the cab there is an iron step or ladder fastened to each side of the body for use in climbing onto the truck, and that the bottom rung of said ladder is approximately 12 inches from the ground; that by reason of its brilliant coloring, its unusual size and shape, the many kinds of vari-colored bottled beverages loaded upon it, and the position of the ladder being within easy reach of a small child, the truck was peculiarly attractive to plaintiff's son and to other children of tender years, and perilous tothose who might be attracted to it and catch or climb upon it, all of which was known to defendant and its servants and agents; that on August 23, 1939, and for several years previously, there was located upon the southwest corner of Lincoln and 33d streets in the City of Savannah a neighborhood store, known as the "Friendly Corner, " where large numbers of children customarily congregated, the neighborhood being thickly populated and said "Friendly Corner" being a popular gathering place for children in the neighborhood, including plaintiff's son, all of which was known to defendant and its servants and agents; that the truck customarily stopped at the "Friendly Corner" to deliver beverages and receive empty bottles at approximately 12:30 p. m. each day, and that when the truck called at said store it was the custom of small children, including plaintiff's son, there congregated, to cling and climb upon the truck and play thereon, all of which was known to defendant and its servants and agents; that on said date and hour defendant's truck was stopped by W. G. Bazemore, white, and Joseph Brown, colored, they being then and there the agents, servants, and employees of the defendant, and being at said time about, upon, and in the prosecution of their master's business, and acting within the scope of their employment and authority, at the said "Friendly Store" in accordance with the custom, and they left the truck parked against the curb on the south side of 33d street, facing east, the rear of the truck being just east of the intersection of 33d and Lincoln streets; that they left the truck unguarded and went into the "Friendly Corner, " where they remained approximately 10 to 15 minutes, and then returned to the truck; that in accordance with the custom of the children, plaintiff's son, Billy Morgan, aged six years, at said time and place climbed upon the truck and was on the right-hand side thereof and in plain view of the defendant's servants and agents when they returned from the store to the truck; that upon approaching the truck defendant's servants and agents drove plaintiff's son off of the right-hand side of the truck and immediately entered the cab of the truck, and without any warning started the same suddenly in motion and drove east on 33d street; that they, with gross and wanton negligence, started the truck suddenly in motion without investigating to see whether or not plaintiff's son or others of the said children, who had remained in close proximity to the truck, were upon the left-hand side thereof or otherwise hanging or climbing thereon or thereto or in close proximity thereto; that they knew, or in the exercise of ordinary care should have known, that plaintiff's son and other children of tender years, acting upon a childish impulse, and, in accordance with practice, would renew their attempts to get upon the truck, and that any child so hanging or clinging thereon or thereto would be subjected to imminent danger and peril when the truck was started in motion, although such child would be unaware of such danger and peril; that after being driven from the right-hand side of the truck plaintiff's son immediately ran to the left-hand side of the truck, where he climbed upon the bottom rung of the ladder just to the rear of the cab of said truck, and was in such position when the truck was suddenly and without warning started in motion; that the position of the child was plainly apparent to the agents and servants of the defendant, and could readily and easily have been seen by them merely by turning their heads and looking to the rear out of the left door of the cab or by looking through the rear window of the cab, but that with gross, wanton and reckless disregard for the safety of plaintiff's son, without taking any precaution for his safety, and without making any investigation whatever to determine whether he was on or upon the truck, the said Brown, who was at the wheel acting under the instructions of the said Bazemore, suddenly and without any warning started the truck in motion and drove it eastwardly on 33d street to Habersham street, a distance of one city block, and at Habersham street turned the truck sharply and suddenly to the left or north on Habersham street, with such suddenness and violence that plaintiff's son was caused to lose his grip, and without any opportunity to save himself was hurled and thrown beneath the left double wheels of the truck, which passed over his head, body, and legs at approximately the center of the intersection of 33d and Habersham streets; that following said injury he was taken to a hospital where he died as a direct result of the injuries inflicted when the said truck ran against, upon and over him; that the negligence of the defendant, acting by and through its servants and employees, Bazemore and Brown, consisted of the following specific acts of gross, wilful, and wanton negligence and carelessness: (a) in starting the truck suddenly in mo-tion without ascertaining' whether.plaintiff's son was thereon, after having first had actual notice and knowledge that he and the other children of tender years were congregated around and climbing on the truck; (b) in driving the truck off while plaintiff's son was upon the truck, and in a position which the driver, the said Brown, and the said Bazemore knew, or in the exercise of ordinary care should have known, was dangerous; (c) by failing to allow plaintiff's son an opportunity to get safely off of the truck before starting the same suddenly in motion; (d) by failing to ascertain that plaintiff's son had reached a place of safety before starting the truck suddenly in motion; (e) by starting the truck suddenly in motion before plaintiff's son was afforded an opportunity to descend from his position of peril thereon; (f) by failing to keep a proper lookout to ascertain whether or not plaintiff's son and the other children were clear of the truck on the left as well as the right-hand side thereof, before starting the same in motion suddenly and without any warning as aforesaid; (g) by failing to discover plaintiff's son upon said truck in a position of peril before turning the same suddenly, sharply, and violently north into Habersham street; (h) in turning the truck suddenly, sharply, and violently north into Habersham street, thus throwing plaintiff's son under the wheels of the truck; (i) in driving the truck upon, against, and over plaintiff's son and killing him; (j) in driving the truck for fully a block with plaintiff's son hanging thereon in a position of peril within plain view of defendant's servants and not stopping the truck and giving him an opportunity to alight; (k) in driving the truck as aforesaid with plaintiff's son in a position of peril and in full view of defendant's servants without slackening the speed or in any manner assisting him to avoid injury and death; (1) in failing to discover the perilous position of plaintiff's son, which the defendant should and would have discovered in the exercise of ordinary care. It was alleged that because of his tender age plaintiff's son was not chargeable with contributory negligence, and that the gross and wanton negligence of defendant, acting through his servants and agents, as aforesaid, was the sole and proximate cause of the fatal injuries inflicted upon him. It alleged certain services rendered by the child to plaintiff, alleged to be worth $3 per week, that by the time he would have become 21 years of age he would have been capable of earning $25 per week, that he had an expectancy of 51.17 years and that plaintiff was entitled to recover the full...