Sapp v. Elrod, 20219.

• Decision Date: 16 April 1930
• Docket Number: No. 20219.,20219.
• Citation: 153 S.E. 73,41 Ga.App. 356
• Parties: SAPP. v. ELROD.
• Court: Georgia Court of Appeals

41 Ga.App. 356

153 S.E. 73

SAPP.

v.ELROD.

No. 20219.

Court of Appeals of Georgia,

Division No. 1.

April 16, 1930.

Syllabus by the Court.

The motion to dismiss the bill of exceptions is without merit.

Syllabus by the Court.

The court properly sustained the demurrer to a portion of the petition, and did not err in entering judgment in favor of the defendant.

Error from City Court of Atlanta; Hugh M. Dorsey, Judge.

Suit by Thomas Sapp, by next friend, against A. S. Elrod and another. Judgment for defendant named, and plaintiff brings error.

Affirmed.

Devine Watson, as next friend of Thomas Sapp, sued A. S. Elrod and Dowman Dozier Manufacturing Company, alleging that Sapp was injured while traveling on a bicycle on Ponce De Leon avenue, "in said State and County, and in the City of Atlanta." The plaintiff amended his original petition by striking therefrom "Dowman Dozier Mfg. Co., " and adding thereto that "the defendant was negligent per se in violating the act of the legislature of 1910, page 90, as found [in] Park's Code of 1914, § 828(e) and Michie's Code of 1926, § 1770(5), in that defendant crossed an intersecting highway, to wit Glen Iris Drive and Ponce De Leon Avenue, at a speed in excess of six miles per hour, and that he violated said law in that he turned a sharp curve at the aforesaid corner in excess of six miles per hour." The defendant filed a demurrer to this amendment and moved to strike it, "for that the said act of 1910 set forth and pleaded was repealed by the act of the Georgia legislature in 1927, known as the motor vehicle act." The court sustained the demurrer and struck the amendment, and the plaintiff excepted pendente lite. The case proceeded to verdict and judgment in favor of the defendant, and the plaintiff excepted.

Breen, Finch & Padgett, Marion Williamson, and E. Harold Sheats, all of Atlanta, for plaintiff in error.

McDaniel, Neely & Marshall, of Atlanta, for defendant in error.

BLOODWORTH, J. (after stating the foregoing facts).

The first headnote needs no discussion. What follows is in elaboration of the second headnote. At the outset attention is directed to the fact that between the date of the approval of the Act of 1910 (Ga. Laws 1910, p. 95), and the approval of the Act of 1927 (Ga. Laws 1927, p. 226), the Legislature passed several bills relating to automobiles, among them the Act of 1915 (Ga. Laws Ex. Sess. 1915, p. 107), and the Act of 1921 (Ga. Laws 1921, p. 255), none of which require consideration in connection with the instant case further than to call attention to the fact that, so far as the act of 1915 relates to the speed of motor vehicles, it has been declared void upon the ground that it is unconstitutional (Jones v. State, 151 Ga. 502, 107 S. E. 765), and that the act of 1921 does not apply to intersecting streets of a city. Shannon v. Martin, 164 Ga. 872, 139 S. E. 671, 54 A. L. R. 1246. Attention is called also to the fact that the case of Byrd v. Thigpen, 40 Ga. App. 257, 149 S. E. 290, though decided August 23, 1929, relates to an accident which, as shown by the record in the office of the clerk of this court, occurred on May 14, 1919, prior to the passage of the act of 1921; and the decision in that case has no bearing on the instant one.

That portion of the act of 1910 pleaded in the amendment to the petition is section 5 and is as follows: "That no person shall operate a machine on any of the highways of this State as described in this Act at a rate of speed greater than is reasonable and proper, having regard to the traffic and use of such highway, or so as to endanger the life or limb of any person or the safety of any property, and upon approaching a bridge, dam, high embankment, sharp curve, descent or crossing of intersecting highways and railroad crossings, the person operating a machine shall have it under control and operate it at a speed not greater than six miles per hour." The act is alleged in the demurrer to have been repealed by the Act of 1927 (Ga. Laws 1927, p. 226). Section 11 of this act is as follows: "No persons shall operate a motor-vehicle upon any public street or highway at a speed greater than is reasonable and safe, having due regard for the width, grade, character, traffic, and common use of street or highway, or so as to endanger life or limb or property in any respect whatsoever; but said speed shall not exceed those tabulated below." Then follows a table showing the...