He-Po Gas, Inc. v. Roath

• Court: Georgia Court of Appeals
• Writing for the Court: FELTON; SUTTON, C. J., and WORRILL
• Citation: He-Po Gas, Inc. v. Roath, 87 Ga.App. 827, 75 S.E.2d 451 (Ga. App. 1953)
• Decision Date: 19 March 1953
• Docket Number: No. 34472,No. 1,HE-PO,34472,1
• Parties: GAS, Inc. v. ROATH

Page 451

75 S.E.2d 451

87 Ga.App. 827

HE-PO GAS, Inc. v. ROATH.

No. 34472.

Court of Appeals of Georgia, Division No. 1.

March 19, 1953.

Syllabus by the Court.

1. The petition alleged negligence per se in the violation of a municipal speed ordinance and negligence in the failure to exercise ordinary care; therefore the court did not err in overruling the general demurrer thereto.

2. The evidence authorized the verdict for the plaintiff.

3, 4. The court did not err in charging the jury as complained of in special grounds 2 and 3 of the amended motion for new trial.

5. The refusal to give the requested charge, complained of in special ground 1, was not error.

6. The failure to charge the law on accident was not error, there having been no request therefor, and the court having charged that the plaintiff could not recover if the defendant was not negligent.

Sue Nell Roath, a six year old first-grader, by next friend sued He-Po Gas, Incorporated, for damages allegedly due to the defendant's negligence. The petition substantially alleged: that at about 8 a. m. on October 2, 1951, the plaintiff was on her way to school, and in order to get to school had to use a certain intersection in the City of Cairo; that, while crossing North Broad Street at the intersection when the traffic light was green for foot traffic to cross said street, the plaintiff was negligently struck and injured by the defendant's truck; that a great number of school children daily use such intersection, a fact well known to the defendant and its driver; that the defendant's driver was negligent in operating the truck through the intersection at a speed of thirty-five to forty miles per hour in violation of a municipal ordinance setting the speed limit at such intersection at fifteen miles per hour; that the defendant's driver was negligent in operating the truck through the intersection at a speed of thirty-five to forty miles per hour, when ordinary care required the driver to operate the truck through the intersection at a speed not greater than fifteen miles per hour; that the driver was negligent in not yielding the right-of-way to the plaintiff and in failing to keep a proper lookout for children, including the plaintiff, who were crossing the intersection on their way to school.

The intersection invovled is not an ordinary intersection where two streets intersect at a ninety degree angle but is one where the streets intersect more in the shape of an 'X'. The upper left and lower right parts of the 'X' represent Georgia Route 38--U.S. Route 84. The upper right part represents Georgia Route 93. The lower left part represents North Broad Street. The upper parts of the 'X' are generally north and the lower parts generally south. The traffic light is located in the middle of the intersection and governs traffic so that it is green for foot traffic crossing North Broad Street and at the same time is green for vehicular traffic traveling south on State 38--U.S 84 (upper left part of the 'X') to proceed through the intersection into North Broad Street (lower left part of 'X'). The cross-walk involved crosses North Broad Street, and is not located directly at the intersection but a slight distance therefrom and was so placed that there was space for at least two automobiles between the cross-walk and the intersection (See chart.) At the time the plaintiff was struck she was crossing North Broad Street, using the cross-walk and traveling east to west. The defendant's truck had been traveling south on Georgia 38--U.S. 84, had passed through the intersection, and had entered into North Broad Street. The defendant's demurrer to the petition was overruled and it excepted pendente lite. The jury returned a verdict for the plaintiff. The defendant's amended motion for a new trial was overruled, and it excepts thereto and assigns error on its exceptions pendente lite.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Edwin A. Carlisle and Bell & Baker, Cairo, for plaintiff in error.

Cain & Smith, Cairo, for defendant in error.

FELTON, Judge.

1. The petition alleged the violation of a municipal speed ordinance. The allegation alleging such violation charged the defendant with negligence per se. O'Dowd v. Newnham, 13 Ga.App. 220, 221(8), 80 S.E. 36; Davis v. Hopkins, 50 Ga.App. 654, 656(3), 179 S.E. 213; Folds v. City Council of Augusta, 40 Ga.App. 827, 829(4), 151 S.E. 685; Central Railroad & Banking Co. v. Smith, 78 Ga. 694(1), 3 S.E. 397. The petition also alleged that the defendant failed to yield the right of way to the plaintiff, failed to keep a proper lookout for her, and drove through the intersection at a speed much greater than that required by ordinary care, and that such negligence, coupled with the negligence in the violation of the ordinance proximately caused the injuries complained of. The petition alleged a good cause of action as against a general demurrer. Streetman v. Bassey, 25 Ga.App. 694, 104 S.E. 517.

2. The defendant in its answer alleged: 'It is admitted that it was customary for a considerable number of such school children to use a special marked off cross-walk at said intersection while crossing North Broad Street in going to and returning from said school * * * but [defendant] denies that it [intersection] was constantly used by school children (regardless of the hour) in going to and from the said school.' The defendant by answer admitted that its driver had used said intersection on a number of occasions and was acquainted with its location and general physical condition.

Alvin B. Wight testified in part as follows: 'I remember the occasion, the accident took place between the truck and the little Roath child. I was headed north going toward the intersection there. The truck was coming from the other way, coming to Cairo from toward Bainbridge. I started home about five minutes to eight o'clock, I guess it was, and when I got close up there the light turned red and so I slowed down to about three or four miles per hour and rolled up to the stop light and when it turned green I started off in a second or so I heard this sound. The truck hit something down there. I saw this little girl when I drove up to this intersection. I don't know what position but she was up at the corner of that Gulf Station on the east side of Broad Street. I think she was standing there. That is the way I recall it. I heard a kind of thud just as I started to drive off. * * * I noticed a blue truck of He-Po when it was approaching me when it came into the intersection. I would say it was traveling about thirty-five miles per hour. I would judge it was traveling about thirty-five miles per hour when it passed my car. * * * I drove up to the light and the light was red and that gave the pedestrian the right to travel on North Broad Street. There was a car ahead of me. * * * I crossed this pedestrian lane and the child was standing there. I did not see her come back of my car. I was, of course, facing forth and looking at the traffic light and expecting it to change. * * * I would say I stopped fifteen or ten to twenty feet from the light where the road goes through from Thomasville to Bainbridge then right out there I would say I was ten or fifteen feet from the center of the road from right under the traffic light. I think there was a car ahead of me. I was not across the pedestrian lane. * * * I was past it, north of it. * * * If the light facing me that caused me to stop was red, the light on his side was green, and I would say he came in on the green light and turned into Broad Street on the green light. I would say he was traveling thirty-five miles per hour. * * * I think the truck stopped about twenty feet further down from my car. I believe he started skidding his brakes right by the side of my car. I heard the truck tires skid right beside me. He started skidding his tires right side of my car or further south. I don't recall that he started before he got to me. * * * I judge my car passed that pedestrian lane about fifteen or twenty feet. I would say the back end of my car was well past the pedestrian lane.'

H. L. Lunsford testified in part as follows: 'I am Deputy Sheriff of Grady County. I was Deputy Sheriff last October. I went to the intersection on North Broad Street when an accident happened injuring the little Roath girl. * * * I found skid marks made by the truck and they appear in the picture. * * * The skid marks led up the back wheels of the truck and stopped. The right side of the truck was off the pavement. The skid marks were just west of the yellow line, the northwest cross-mark line, the one next to the traffic light. The distance from where the skid marks begin to the rear of the truck was thirty-one feet.'

J. B. VanLandingham testified in part as follows: 'I have been Chief of Police of Cairo for six years. * * * I am familiar with the cross-walk leading from the west side of North Broad Street at the intersection leading from the east side to the west side. There was a cross-walk there when the accident took place in October. * * * The lane was the one generally used by the children during the normal time they were coming and going to school. * * * The majority of the children pass there from eight-fifteen to eight-forty, when school takes in.'

Russell Shiver, the defendant's driver, testified in part as follows: 'I was then going south on the highway at approximately twelve to fifteen miles per hour when I reached the intersection. The light was in my favor, which was green, and I proceeded coming south out of the intersection and on to North Broad Street and immediately to my left Mr. Alvin Wight's car was sitting on the north lane. I did not see any child at all. No one was in view when I got practically behind Mr. Wight's car, I was looking to my left and I still could not see anything and all at once the kid...