Grayson v. Yarbrough, 38673

• Decision Date: 03 March 1961
• Docket Number: No. 38673,No. 1,38673,1
• Citation: 103 Ga.App. 243,119 S.E.2d 41
• Parties: M. O. GRAYSON v. Jean YARBROUGH
• Court: Georgia Court of Appeals

Page 41

119 S.E.2d 41

103 Ga.App. 243

M. O. GRAYSON v. Jean YARBROUGH.

No. 38673.

Court of Appeals of Georgia, Division No. 1.

March 3, 1961.

Syllabus by the Court.

The court did not err in overruling the defendant's amended motion for a new trial and his motion for a judgment notwithstanding the verdict.

Mrs. Jean Yarbrough sued Max Oscar Grayson to recover damages for the alleged tortious death of her three year old son. The petition, as amended, alleged that the defendant's automobile struck the child while the defendant was operating the vehicle within the city limits of Tifton, Georgia, while proceeding south between the intersecting streets of Seventh and Eleventh. The petition further alleged that the injury occurred in a residential district where a large number of families lived; that the defendant was familiar with the area of South Ridge Avenue between the intersecting streets of West Seventh Street and the Old Omega Road, upon which is located Owens Trailer Park, where the defendant resided, the defendant having traveled said South Ridge Avenue at least 90 times while he was a resident of Tifton, Georgia; that at the corner of Eleventh Street and South Ridge Avenue, an intersection between West Seventh Street and the Old Omega Road, said point being approximately 500 feet south on South Ridge Avenue from the Yarbrought residence a playground is maintained for children under 12 years of age and that signs are erected notifying the general public that children of tender years are in the area, and that the signs are sufficiently legible to be seen by an ordinarily observant person, said signs reading 'Playground for children twelve years and under'; that the place where the collision between the defendant's automobile and John Mark Yarbrough occurred, was in a thickly populated residential district and within 500 feet of a designated playground for children twelve years old and under, and thus the area was and is a place where the defendant knew, or should have known, that children of tender years become pedestrians on the streets; that John Mark Yarbrough, while playing with the toy rubber football, kicked the said football, causing it to bounce into the south traffic lane of South Ridge Avenue and after four or five seconds, said John Mark Yarbrough followed the football out into the street and thereupon became a pedestrian; that said child picked the toy rubber football up, which was at the time lying in the south bound traffic lane of South Ridge Avenue; that he took two steps in a southwesterly direction and dropped the toy football and stooped and picked it up, at this time being approximately 456 feet south of West Seventh Street, whereupon the defendant violently and negligently drove his car into and against the back and head and running over said child with great force and violence thereby severely injuring him. The petition alleged the following specifications of negligence: '(a) In failing to grant the right of way to a pedestrian who was then and there upon the roadway, and whose presence was, or should have been, apparent to the defendant; (b) In operating his vehicle at a speed in excess of what a reasonable and prudent person would operate a vehicle under like conditions and circumstances; (c) In failing to use due care in the operation of the defendant's vehicle to prevent injury to persons legally upon the public streets of Tifton, Georgia; (d) In failing to keep a careful watch to see that defendant's automobile did not cause injury to children of tender years playing in a residential area; (e) Failure to keep his automobile under control so as to prevent injury in the operation thereof; (f) Failure to operate his car in a slow, careful and prudent manner, when a special hazard existed with respect to pedestrians in violation of Section 48-(c) of the Traffic ordinance of the City of Tifton, the same constituting negligence per se, or negligence as a matter of law; (g) In operating his vehicle at a fast and excessive rate of speed under the conditions and circumstances as they existed on the day hereinbefore set out; (h) In failing to give John Mark Yarbrought time to safely get out of the path of the defendant's vehicle; (i) In failing to slow his vehicle down and, if need be, stopping the same to yield the right of way to John Mark Yarbrough, a pedestrian who had already entered and was practically across the lane of traffic in which defendant was traveling before he came upon said John Mark Yarbrough; (j) In failing to keep a lookout ahead to observe pedestrians who might be in the street, in a thickly populated residential district where he should have anticipated that a pedestrian might be running into the street; (k) In failing to keep a lookout ahead and observing John Mark Yarbrough in the street and so controlling the speed and course of his vehicle as to avoid colliding with the child; (l) In failing to keep his vehicle under such control as that he could bring the same to a stop before striking John Mark Yarbrough when he observed said child, or in the exercise of due care and caution should have observed said child in the street as a pedestrian; (m) Failing to sound the horn of his automobile and thus give warning to John Mark Yarbrough of his approach and afford the child an opportunity to run or leap from the paved portion of the street and path of defendant's vehicle.'

There were various demurrers to the petition and amendments thereto, to meet the demurrers. After the amendments, the demurrers of the defendant were not...