Streetman v. Bussey

• Court: Georgia Court of Appeals
• Writing for the Court: JENKINS, P.J.
• Citation: Streetman v. Bussey, 25 Ga.App. 694, 104 S.E. 517 (Ga. App. 1920)
• Decision Date: 13 October 1920
• Docket Number: 11369.
• Parties: STREETMAN v. BUSSEY.

104 S.E. 517

25 Ga.App. 694

STREETMAN v. BUSSEY.

No. 11369.

Court of Appeals of Georgia, Second Division

October 13, 1920

Syllabus by the Court.

Under the facts alleged, it was error for the trial judge to dismiss this case on general demurrer.

Additional Syllabus by Editorial Staff.

It is only in a plain and indisputable case that the court is authorized to determine questions of negligence.

"Ordinary care" is that care which every prudent man exercises under the same or similar circumstances.

A boy under 14 years of age need only exercise the care of one of his age and capacity.

Error from Superior Court, Muscogee County; G. H. Howard, Judge.

Action by Dan Streetman, by next friend, against Arthur Bussey. Demurrer to petition sustained, and suit dismissed, and plaintiff brings error. Reversed.

Frank U. Garrard and A. S. Bradley, both of Columbus, for plaintiff in error.

Battle & Arnold, of Columbus, for defendant in error.

JENKINS P.J.

The defendant contends that the allegations of the plaintiff to the effect that upon starting around the car and across the street he first looked to ascertain if danger existed, and was unable to discern the approach of defendant's car although the driver might at that time have seen the plaintiff, are manifestly incredible, and that the court will not accept, even on demurrer, a statement contained in a petition which on its face could not be true. He contends also that the plaintiff's act of negligence in suddenly coming out into the road from behind the truck was such lack of care on his part as would necessarily prevent a recovery despite the age of plaintiff, since he by his petition charges himself with that degree of knowledge and discretion the exercise of which would have been sufficient to his protection. The determination of questions as to negligence lies peculiarly within the province of the jury. This general rule has been often stated both by the Supreme Court and by this court, and it is only in plain and indisputable cases that the court will be authorized to determine questions of negligence on demurrer (Western Union Telegraph Co. v. Spencer, 24 Ga.App. 471 [1], 101 S.E. 198; but, even if we were to assume, under the state of facts alleged in the petition, that this child was in some degree lacking in care in starting out across the road, it would still be a question for the jury to determine what it was that constituted the proximate cause of the injury; that is to say, what and whose negligence, the injury is properly attributable to. White v. Seaboard Air Line R. Co., 14 Ga.App. 139, 80 S.E. 667; Ga. Ry. & Power Co. v. Ryan, 24 Ga.App. 288, 100 S.E. 713; Central of Ga. Ry. v. Larsen, 19 Ga.App. 413, 418, 91 S.E. 517.

Ordinary care is defined to be that care which every prudent man exercises under the same or similar circumstances. In this case, however, the plaintiff, being a child less than 14 years of age, was not bound to exercise the ordinary care exacted of every prudent man, but was bound only to exercise due care according to his age and capacity. Kendrick v. High Shoals Mfg. Co., 21 Ga.App. 315, 94 S.E. 287; Park's Ann. Code, § 3474. In the case of Central R. & Banking Co. v. Rylee, 87 Ga. 491, 13 S.E. 584, 13 L.R.A. 634, the Supreme Court used the following language:

"Where a child under 14 years of age is injured and brings his action for the injury, and there is a demurrer to the declaration on the ground that the allegations therein show that the child did not observe due care, or could have avoided the injury by the observance of such care, the court may overrule the demurrer, on the ground that prima facie the child did not have sufficient knowledge or capacity to know what was due care, or sufficient capacity to have avoided the injury by its observance, and may invoke the analogy of the criminal law, and hold that the presumption is that the child did not know, or did not have sufficient capacity, as was held in the case of Rhodes v. Railroad, 84 Ga. 320. But where there is no demurrer and the case is submitted to the jury, there is no presumption one way or the other, and the jury must find from the evidence whether the child had sufficient capacity at the time of the accident to know the danger, and to observe due care for its own protection. If it has such capacity and voluntarily goes into danger or to a dangerous place, it cannot recover; otherwise it can. Young v. Railroad, 81 Ga. 397; s. c., 83 Ga. 512. It depends altogether upon the capacity of the child at the time of the injury. The better rule would be for the jury to deal with each case upon its own facts, unhampered by presumptions of

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