Mayor & Aldermen of Savannah v. Johns, 34371
| Decision Date | 14 February 1953 |
| Docket Number | No. 34371,No. 1,34371,1 |
| Parties | MAYOR & ALDERMEN OF SAVANNAH v. JOHNS |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The petition, alleging that the death of the plaintiff's daughter was caused by the negligence of the employees of the defendant municipal corporationw hile engaged in the performance of a ministerial function of repairing or improving its streets, set out a cause of action, and it was not error to overrule the general demurrers thereto.
Leon Johns brought this suit against the Mayor and Aldermen of the City of Savannah to recover, as his damages for the homicide of his child, the value of the services which she would have rendered during her minority, and medical and funeral expenses. The allegations of his petition were substantially as follows: The defendant is a municipal corporation under the law of Georgia and is the governing authority of the City of Savannah in Chatham County, Georgia. The plaintiff is the father of Caroline L. Johns, who was killed at the intersection of New York Avenue and Delaware Avenue in the City of Savannah, between the hours of 1:45 p. m. and 2:30 p. m. on April 4, 1951. Caroline was then three years of age, rendered certain services to her father of an alleged value, was strong and in good health, and lived with her parents on New York Avenue in Savannah. Shortly before the time of her death, Caroline was playing with several other children in a vacant lot at the southwest corner of New York and Delaware Avenues. She proceeded to cross from this corner of the intersection to the northeast corner thereof, but was killed when a motor truck driven by H. A. Poole ran over her. She had proceeded to a point where the front wheels of the truck straddled her body, but the right rear wheel of the truck ran over her head and crushed it. Poole did not apply the brakes to the truck when it was apparent, or should have been apparent in the exercise of ordinary care, that Caroline was in front of the truck, nor did he apply brakes when the truck first started over her body. Had he done so at either time, he could have stopped the truck before killing Caroline. The truck was owned by the defendant, and Poole, the operator thereof, was working as an employee of the defendant. The truck was loaded with sand to be dumped in Delaware Avenue to fill in a place that had become low and was a hole. Sand was being put there to repair this low place. The hole ranged in depth from one to six inches below the ordinary level of Delaware Avenue, was eight feet long, and was from eight to nine feet wide. It was brought about by the defendant's repairing of Delaware Avenue by scraping and grading on the dy of Croline's death. The low place that was to be filled in with sand had been filled in with dirt two months previously, but the fill was pulled out in scraping and grading the street, and the sand in the truck was to replace the fill. The truck had come to a stop on New York Avenue before entering the intersection with Delaware Avenue. Poole, before driving the truck into the intersection, waited until he was given an all-clear signal by J. E. Lubeck, also an employee of the defendant. Lubeck signalled to Poole, and thereupon turned his back and did not look in the direction of the truck until he heard the screams of an onlooker as the truck passed over Caroline's body. The truck was then passing northeastward into Delaware Avenue with the sand to be used to repair that street. Both streets referred to are public streets in the City of Savannah; Delaware Avenue is 40 feet wide and New York Avenue is 60 feet wide. Small children were accustomed to play in the vacant lot at the southwest corner of this intersection and to cross the intersection in going to and from the vacant lot. There was nothing to prevent Lubeck from seeing Caroline when she left the vacant lot and proceeded across the intersection, and there was nothing at any time between the truck and Caroline; in crossing the intersection she was in plain view of Lubeck and Poole, had either of them looked, but neither of them kept a lookout to avoid hitting her. New York Avenue Runs east and west, and Delaware Avenue runs north and south. When the truck struck Caroline, it was being driven at a low rate of speed, between five and eight miles per hour, and was on the south side of New York Avenue, just west of the center line of Delaware Avenue. When Lubeck signalled the truck to enter the intersection, he was standing on the east side of Delaware Avenue, from 40 to 45 feet north of New York Avenue. Had Lubeck been keeping a proper lookout, he could have seen Caroline or prevented her from getting in front of the truck. Had Poole been keeping a proper lookout, he could have seen Caroline in the intersection and could have blown a horn or given some other signal to warn or deter her, and could have avoided running over her. Poole could have stopped the truck before its rear wheel ran over Caroline's head, but did not do this nor make any attempt to do so. No other motor vehicle was at the intersection at this time, and both streets were free of traffic at their intersection. Caroline's death was proximately caused by the following particular acts of negligence: (a) Lubeck, after giving his driver a signal to proceed, turned his back on the truck and failed to warn the driver of Caroline's approach in front of the truck. (b) Lubeck failed to keep a lookout for persons entering the intersection after the truck had started into the intersection. (c) Lubeck failed to see Caroline enter the intersection. (d) Poole continued to drive the truck into the intersection after Lubeck had turned his back to him. (e) Poole failed to see Caroline in front of the truck. (f) Poole failed to stop the truck after Caroline was in front of it and before the truck struck her. (g) Poole failed to stop the truck after the front of the truck...
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