Red Top Cab Co. v. Cochran, 37925

• Decision Date: 17 November 1959
• Docket Number: No. 37925,No. 1,37925,1
• Citation: 112 S.E.2d 229,100 Ga.App. 707
• Parties: RED TOP CAB COMPANY, Inc. v. Lee COCHRAN, Next Friend
• Court: Georgia Court of Appeals

Page 229

112 S.E.2d 229

100 Ga.App. 707

RED TOP CAB COMPANY, Inc. v. Lee COCHRAN, Next Friend.

No. 37925.

Court of Appeals of Georgia, Division No. 1.

Nov. 17, 1959.

Syllabus by the Court

1. The evidence authorized the verdict.

2. Where a child six years of age is struck by an automobile such child is too young to be capable of contributory negligence.

Lee Cochran, as next friend of Clarence Sharkey Cochran, sued Red Top Cab Company, Inc. to recover for injuries sustained when, according to the allegations of the petition, the minor Clarence Sharkey Cochran was struck by a taxicab owned by the defendant and being operated in the course of its business. On the trial the jury returned a verdict for the plaintiff. The defendant moved for a new trial on the usual general grounds which motion it later amended so as to assign error on an excerpt from the charge. The trial court denied the motion and the defendant assigns error.

Tyler, Burns & Tyler, John C. Tyler, Atlanta, for plaintiff in error.

Sam Phillips McKenzie, Atlanta, for defendant in error.

NICHOLS, Judge.

1. The evidence adduced on the trial was in sharp conflict. The plaintiff's evidence showed that the front of the taxicab struck the minor as he was walking across the street and while such taxicab was traveling 40 miles per hour through a thickly populated area in the City of Atlanta. The defendant's evidence showed that the minor ran into the side of the taxicab while it was traveling between 15 and 20 miles per hour. The evidence authorized the verdict and the trial court did not err in denying the defendant's motion for new trial on the usual general grounds. See Halpern v. Strickland, 98 Ga.App. 890, 107 S.E.2d 227, and citations, as to the duty of this court in cases involving the denial of a new trial on the usual general grounds by the trial court.

2. The sole special ground assigns error on the following excerpt from the charge: 'Now gentlemen, I charge you, as a matter of law, that Clarence Sharkey Cochran was too young, immature, and inexperienced to possess sufficient judgment, prudence and discretion to be chargeable with the failure to exercise due care for his own safety or with any contributory negligence. Therefore, in determining whether or not the defendant driver was negligent and whether that negligence, if any, was a proximate cause of the collision that produced the child's alleged injuries, you are not to consider whether or not the child used any care for his own safety, since, under the law of Georgia, he is not chargeable with the duty of exercising care for his own safety. Now, even if you find that the said child acted contrary to all principles of selfpreservation, or for the care of his own safety, if you further find that the defendant's driver, by the exercise of ordinary care, could have observed the child and could have anticipated the course of action he took, and you find, by the exercise of ordinary care, he could have avoided the collision with the child, then I charge you that you would be authorized to find the defendant's driver was negligent. I further charge you, gentlemen, that no contributory negligence can be involved on the part of the child because of the young age of the child.' This charge, for all practical purposes, is verbatim with the charge approved by this court in Christian v. Smith, 78 Ga.App. 603, 608, 51 S.E.2d 857, where the plaintiff's 5 year old daughter was allegedly killed as the result of the negligence of the defendant.

The real contention of the defendant in the present case appears to be that the...