Madden v. S.L. Mitchell Automobile Co.

• Decision Date: 31 October 1917
• Docket Number: 8809.
• Citation: 94 S.E. 92,21 Ga.App. 108
• Parties: MADDEN v. S. L. MITCHELL AUTOMOBILE CO. ET AL.
• Court: Georgia Court of Appeals

94 S.E. 92

21 Ga.App. 108

MADDEN v. S. L. MITCHELL AUTOMOBILE CO. ET AL.

No. 8809.

Court of Appeals of Georgia, Second Division

October 31, 1917

Syllabus by the Court.

The evidence supported the material allegations of the petition and the court erred in granting a nonsuit.

Additional Syllabus by Editorial Staff.

Where an infant of immature years trespasses on running board of a sight-seeing car the only duty owed him is not to injure him wantonly or willfully, which rule ordinarily imposes simply the duty of taking proper precautions after his presence in a position of peril is discovered.

On evidence in an action for death of plaintiff's infant son, a trespasser on the running board of a sight-seeing car from the alleged willful and wanton negligence of the driver held, that the question of decedent's failure to exercise due care according to his capacity was for the jury.

Error from Superior Court, Walker County; M. C. Tarver, Judge.

Suit in ejectment by T. F. Madden against the S. L. Mitchell Automobile Company and others. Judgment of nonsuit, and plaintiff brings error. Reversed.

T. F Madden filed suit in attachment against S. L. Mitchell Automobile Company, S. L. Mitchell, and Lookout Mountain & Chattanooga Sight-Seeing Company. Briefly stated, the material allegations of the petition are as follows: That the defendants were, on May 15, 1914, operating motor trucks over a described route for sight-seeing parties; that at a certain point on said route stood a large monument, known as the Iowa monument, and at this point is a playground where a number of children, between the ages of 6 and 15 years, collect and play during the day, and that defendants and their agents were fully aware of said fact; that the motor cars of the defendants, in passing this playground, were accustomed to move at a slow rate of speed, namely, from 3 to 6 miles an hour, and that the drivers of defendants' cars had been accustomed to permit the children to board and ride the cars while passing this point at said slow rate of speed, such custom having been a continuous one for some months prior to May 15, 1914; that it was the duty of defendants' agents operating its cars, being aware of this custom, to anticipate that the children would attempt to board the cars at this point, and their said agents were under a duty to take proper measures to prevent injury to these children. The petition further alleged that plaintiff's son, of the age of 11 years, together with several companions, was at said playground on the forenoon of May 15, 1914; that one of defendants' cars in charge of its agent, Burns, entered the playground running very slowly, said agent knowing at the time that children were in the habit of jumping upon the steps or running board of the car at this point; that upon entering the playground the car was running at a speed of about 3 miles an hour, and soon after it entered the ground petitioner's son, together with three others, ran out to jump upon the running board and ride, two of the boys running across the road in front of the car and boarding the left side of the car, while plaintiff's son and another attempted to swing on the running board on the right side; that petitioner's son missed the running board of the car, was hurled under it, and the right wheel of the car ran over him, inflicting injuries from which he soon died. It is alleged that the driver of the car, just at the time petitioner's son undertook to board the same, applied more power to the machine, causing it to move faster, and that by such sudden motion of the car the boy was tripped up and killed. The petition further alleged that deceased was lacking in experience and discretion, and was incapable of appreciating the danger of undertaking to board the car while in motion; that Burns, the driver, had full control and management of the car, and knew that deceased had on previous occasions mounted and ridden on his car at this point, as he was undertaking to do at this time; that divers other boys of about equal age as deceased had prior to this time, with the knowledge of Burns and without objection from him, jumped upon his car at this point, when going in this direction, and that said driver was aware of the lack of discretion and experience on their part, and their inability to appreciate the danger in their conduct in so boarding the car. The driver was charged to be negligent in that, although he knew of the children's custom of boarding his car at said point, and had often so permitted them to do, and though he knew their lack of experience and realized the danger they incurred in so boarding the car, and knew, or ought to have known, that deceased was attempting to board his car, he on this occasion failed to ascertain whether any of the children had boarded, or were attempting to board, his car as he passed the playground, but instead of so ascertaining he speeded up his car at this point, contrary to his usual custom. There were further allegations as to the earnings of deceased, his contribution to the support of plaintiff and his family, and the attachment proceedings theretofore had in aid of this suit. At the...