Smith v. Kleinberg

• Decision Date: 22 May 1934
• Docket Number: No. 23608,23608
• Citation: 174 S.E. 731,49 Ga.App. 194
• Parties: SMITH . v. KLEINBERG.
• Court: Georgia Court of Appeals

49 Ga.App. 194

174 S.E. 731

SMITH .

v.KLEINBERG.

No. 23608

Court of Appeals of Georgia,

Division No. 2.

May 22, 1934.

.

Syllabus by Editorial Staff.

Error from City Court of Savannah; Davis Freeman, Judge.

Suit by G. H. Smith, Jr., by next friend, against M. R. Kleinberg. To review a judgment of nonsuit, plaintiff brings error.

Reversed.

Abrahams, Boulhan, Atkinson & Lawrence, of Savannah, for plaintiff in error.

Hester, Lewis & Clark, of Savannah, for defendant in error.

Syllabus Opinion by the Court.

JENKINS, Presiding Judge.

It being the duty of persons driving automobiles at a place on a public street in a populous locality of a city, where they know that a crowd of people is accustomed to gather or such a crowd is in plain view of motorists, especially in the case of small children in the vicinity of a school, to be vigilant and cautious in exercising under such circumstances the ordinary care which the law requires (City Ice Delivery Co. v. Turley, 44 Ga. App. 32, 35, 36, 160 S. E. 517; 1 Berry on Automobiles [6th Ed.] 470, § 582; Vartanian on Law of Automobiles, § 92; 42 C. J. 1053); and questions of negligence, contributory negligence, and proximate cause, being for the jury except in plain and palpable cases, and a child six years of age not being required to exercise the diligence of an adult, but only "such care as its capacity, mental and physical, fits it for exercising in the actual circumstances of the occasion and situation under investigation, " the question of his capacity being for the jury (Civil Code of 1910, § 3474; Central Ry. & Banking Co. v. Rylee, 87 Ga. 491, 13 S. E. 584, 13 L. R. A. 634; Clary Maytag Co. v. Rhyne, 41 Ga. App. 72 [2], 75, 151 S. E. 686), the grant of a nonsuit is not proper in an action for personal injuries to such a child against a driver of an automobile, where, according to the plaintiff's evidence, the driver approached the place of injury, where small school children were accustomed to gather and were at the time gathered, in view of motorists, at a speed of fifteen miles an hour, without decreasing his speed, and, so far as indicated by the evidence, without blowing his horn or giving other warning of his approach, where the child ran out from behind two trucks parked on the opposite side of the street from the side on which the automobile was traveling, but there was a distance of at least five adult steps, or approximately fifteen feet, from the edge of the truck projecting into the street to the automobile when opposite the truck, and the child collided with the approaching automobile near its center and received severe injuries. Under such evidence it was a question for the jury whether the occurrence was an unavoidable accident, and...