Riggs v. Watson

• Decision Date: 08 May 1948
• Docket Number: No. 31914.,31914.
• Parties: RIGGS. v. WATSON et al.
• Court: Georgia Court of Appeals

47 S.E.2d 900

RIGGS.

v.WATSON et al.

No. 31914.

Court of Appeals of Georgia, Division No. 1.

May 8, 1948.

Syllabus by the Court

1. The failure of the court to charge so much of the Code, § 68-9919, as defines the criminal offense of reckless driving, based on willful and wanton disregard of the safety of other persons, was not error since the evidence as to willfulness and wantonness did not authorize such charge.

2. The court erred in admitting evidence of the defendants, over timely objection, as to the amount of money expended by them in keeping their fleet of trucks in repair.

3. In an action for damages for personal injuries, based on negligence alone, it was not error for the court to omit to charge the jury on punitive damages.

4. 5, 6 and 8. The charges complained of in grounds 8, 9, 10, 11 and 14 of the motion for new trial were not erroneous.

7. Under the pleadings and the evidence in this case it was error requiring the grant of a new trial for the court to charge on the subject of accident.

9. Whether the verdict was inadequate is not considered.

10. The child here involved, being 5 years, 2 months and 25 days old, was too young, immature and inexperienced to possess sufficient judgment, prudence and discretion, to be chargeable with a failure to exercise due care for his own safety, or with contributory negligence, under the facts and circumstances of this case, and the court erred in overruling the plaintiff'sdemurrer to the answer of the defendants and in submitting the question of the child's capacity to the jury.

Error from Superior Court, Houston County; Mallory C. Atkinson, Judge.

Death action by Mrs. Mary Jones Riggs against Herman Watson and Charles Williams, individually and as partners, and another. To review the judgment, the plaintiff brings error.

Reversed.

Mrs. Mary Jones Riggs sued Watson and Williams, a partnership, Herman Watson and Charles Williams, individually, and George Watt, their truck driver, for damages for the alleged negligent homicide of her child, Buddy Riggs, who contributed to her support and upon whom she was dependent.

The plaintiff alleged, and the evidence tended to show, substantially that the child was killed by being struck and run over by the truck of the defendants, near the noon hour on March 9, 1946, on Robbins Drive, a public street in Warner Robbins, a town of some 10 or 15 thousand people, and in a thickly populated area where many pedestrians and children used the street at all hours of the day, and within about 500 feet of a grammar school, and about 150 feet from a playground, used by great numbers of children at all hours of the day, and about 75 feet from a children's nursery and nursery playground; and the fact that a great many children used the street for various purposes was well-known to the defendants at the time the child was killed; that the driver of the truck had a clear and unobstructed view of the street for about 450 feet before he struck said child, the street being about 45 feet wide, with an open and unobstructed view of about 50 feet on each side of the street; that the street was level and completely straight. The negligence charged to the driver was a failure to keep a proper lookout, and to bring said truck to a stop, and to turn said truck to avoid striking the child, and to give any warning of the approach of the truck; in operating the truck at a rate of speed in excess of 15 miles per hour in violation of a city ordinance, and in operating said truck without efficient and serviceable brakes and without a signalling device thereon. Additional negligence charged to the other defendants was in failing to properly inspect the truck to determine the condition of the brakes, and that it was without a signalling device, and in permitting George Watt (the driver) to operate the truck when he was mentally and physically incapable of doing so; that he possessed mental capacity not above that of a 10 or 12 year old child, although he was a mature man, and that he was incapable of operating said truck, weighing approximately 4, 000 pounds, with a load of wood thereon weighing several hundred pounds, upon the street and under the conditions and circumstances described. It was also charged that the truck was negligently operated upon a public street at a speed greater than was reasonable and safe having due regard to the existing conditions of such street, and so as to endanger life and limb, and was operated in such a manner as to be in willful and wanton disregard of the safety of persons, which conduct amounted to reckless driving, and was in violation of law, and that the driver was grossly negligent in not having the truck at the time under his immediate control.

The material allegations of the answer of the defendants are that the child, shown to be 5 years, 2 months and 25 days old, was an intelligent child and capable of exercising diligence and care for his own protection at the time and place he was killed; that notwithstanding such capacity for recognizing danger and avoiding the result thereof, the child carelessly ran into a travelled highway in a thickly populated community immediately in front of the truck, which made it impossible for the driver to stop, or turn the truck so as to avoid striking him; that the conduct of the child constituted negligence on his part and a failure by him to exercise that degree of care and diligence for his own protection of which he was capable; that the child could have avoided the consequences of the defendants' negligence (which they expressly denied), if any, bythe exercise of such care and diligence as he was capable of exercising.

An ordinance of the town of Warner Robbins establishing a maximum speed limit of 25 miles per hour, and no more than 15 miles per hour when crossing an intersecting street, and providing that "the speed of vehicles shall at all times be controlled by traffic conditions, and may be deemed reckless although within these limits, " was in-introduced in evidence. The child was struck as he ran diagonally across the paved street, with his back or side toward the approaching truck. The driver of the truck testified that he did not see the child until he was within 2 or 3 feet of the truck, and that he did not blow his horn or otherwise signal his approach to the child, and did not apply his brakes or make any effort to stop the truck before striking the child. He further testified that his attention was diverted to a vehicle approaching from the opposite direction, and that for this reason he did not see the child. There was some evidence that the truck had no horn or signalling device, that its brakes were not in good working order, and that it ran from 40 to 100 feet after striking the child before it stopped. The truck's speed was estimated by witnesses to have been about 20 or 25 miles per hour at the time the child was struck, and there was evidence that it had not slowed down to any extent before striking the child.

A verdict for $750 was returned for the plaintiff. She filed a motion for new trial on the general grounds and on several special grounds. It was overruled and the plaintiff excepted.

S. Gus Jones, of Macon, and Hubert A. Aultman, of Perry, for plaintiff in error.

S. A. Nunn, and J. W. Bloodworth, both of Perry, and Harris, Harris, Russell & Weaver, of Macon, for defendant in error.

PARKER, Judge.

1. The first special ground of the amended motion assigns error on the failure of the court to charge so much of the Georgia Code, Ann.Supp. § 68-9919, as defines the criminal offense of reckless driving. The amended petition alleged that "at said time and place said driver drove said motor vehicle upon said street in such a manner as to be in wilful and wanton disregard of the safety of persons and said conduct on his part amounted to reckless driving and was in violation of law." Although the plaintiff alleged wilful and wanton conduct in the languge of the statute, we think the evidence would have to support the allegation before the court would be authorized to give the statute in charge. The definition of reckless driving is based on wilful and wanton disregard of the safety of other persons. While the evidence was sufficient to show negligence on the part of the driver of the truck, we do not think it showed wilfulness or wantonness within the meaning of the law. "The conduct of the defendant must be 'such as to evidence a willful intention to inflict the injury or else was so reckless or so charged with indifference to the consequences, * * * as to justify the jury in finding a wantonness equivalent in spirit to actual intent.'" King v. Smith, 47 Ga.App. 360, 366, 170 S.E. 546, 549; Reid v. Sinclair Ref. Co, 62 Ga.App. 198, 201, 8 S.E.2d 527. We do not think this ground shows error.

2. We think the court erred as contended in ground 3 in permitting the defendants to offer evidence over timely objection as to the amount of money expended by them in keeping up all of their trucks; and that any evidence as to repairs, or money expended therefor, should have been restricted to the one truck involved in the transaction under investigation.

3. In an action for damages for personal injuries, based on negligence alone, it is error to charge...