Teppenpaw v. Blaylock

• Court: Georgia Court of Appeals
• Writing for the Court: STOLZ; BELL; EVANS; EVANS
• Citation: Teppenpaw v. Blaylock, 126 Ga.App. 576, 191 S.E.2d 466 (Ga. App. 1972)
• Decision Date: 30 June 1972
• Docket Number: No. 1,No. 47139,47139,1
• Parties: Cheryl L. TEPPENPAW v. David L. BLAYLOCK

Page 466

191 S.E.2d 466

126 Ga.App. 576

Cheryl L. TEPPENPAW v. David L. BLAYLOCK.

No. 47139.

Court of Appeals of Georgia, Division No. 1.

June 30, 1972.

Syllabus by the Court

1. The verdict was authorized by the evidence.

2. The charges complained of were not erroneous.

Guy B. Scott, Jr., Athens, for appellant.

Telford, Stewart & Stephens, J. Douglas Stewart, Gainesville, for appellee.

STOLZ, Judge.

1. In this action by a four-year-old minor for damages for personal injuries, the verdict finding the defendant 'not guilty of negligence' and the judgment in favor of the defendant, were authorized by evidence that the plaintiff girl, who was under the 'supervision' of an adult baby-sitter, was playing in a park across the street from the sitter's apartment, from which the sitter could watch her; that the sitter was aware that the street was a dangerous one with respect to traffic and children; that when the plaintiff got ready to come back across the street some three or four minutes after the sitter had last watched her playing, she called to the sitter while standing still immediately in front of the last one of a line of parked automobiles across the street from the apartment; that the sitter went to the front door of her apartment and turned around to speak to her friend in the room with her, at which time the plaintiff was struck by the defendant's automobile, which was traveling at 20-25 m.p.h. in the direction toward which the parked automobiles were facing, that the defendant's automobile was parallel with the parked automobile, from behind which the plaintiff emerged, before he saw the plaintiff's movement to his right; that at about the time the plaintiff was struck, the defendant slammed on his brakes, swerved to his left, and then pulled back over to his right; that there was, after the accident, a smudge on the dusty surface of the defendant's right front fender about a foot from the front, which had not been there before; that an eyewitness testified that the plaintiff never got in front of the defendant's oncoming automobile. Therefore, the trial court did not err in overruling the general grounds of the motion for a new trial.

2. Two of the trial court's instructions to the jury were as follows: (a) '(I)f you should determine that the actions of a third party, specifically of Mrs. Manders (the baby-sitter), who is not a party to this law suit, were the sole proximate cause of the injuries sustained by the plaintiff, then the plaintiff cannot recover from the defendant in this case, and in such an event you would be obligated to return a verdict in favor of the defendant.' (Emphasis supplied.) (b) '(A)lthough a child of the age that the plaintiff was at the time of the occurrence in question cannot be legally guilty of negligence as I have previously told you, I charge you that if you find that the acts of the plaintiff under the circumstances of this case were the sole proximate cause of the collision in question and of the injuries to the plaintiff, then the plaintiff cannot recover, and it would be your duty to find in favor of the defendant.' (Emphasis supplied.)

The appellant contends that these instructions in combination were harmful in that the negligence, if any, of the custodian was not the sole, or even a, proximate cause of the injuries because it merely caused 'a condition providing an opportunity for other causal agencies to act' (quoting 65 C.J.S. Negligence § 104, p. 1135), that they permitted the imputing of the custodian's negligence to the plaintiff contrary to the provisions of Code § 105-205, and that to uphold these instructions as applied to the facts in this case, would require the minor plaintiff to exercise ordinary care for her own safety and amount to a holding that no child of tender years could ever recover when struck while crossing a roadway, since he should always be accompanied by a parent, guardian, or custodian.

The instructions complained of were not erroneous. 'Where the sole proximate cause of an injury to the plaintiff is the negligence of some one other than the defendant, there can be no recovery against the defendant, although the defendant may have been guilty of negligence.' Ga. R. & Power Co. v. Bryans, 35 Ga.App. 713(1), 134 S.E. 787. (Emphasis supplied.) '(N)egligence which is the proximate cause of an injury is such an act that a person of ordinary caution and prudence would have foreseen that some injury might likely result therefrom.' Richards v. Harpe, 42 Ga.App. 123(10), 155 S.E. 85. A four-year-old child is conclusively presumed to be incapable of contributory negligence. Code § 105-204; Crawford v. Southern R. Co., 106 Ga. 870(2), 33 S.E. 826; Riggs v. Watson, 77 Ga.App. 62, 47 S.E.2d 900. Under the evidence the jury would have been authorized to find that the custodian should have foreseen that the four-year-old minor might attempt to cross the street, which the custodian knew to be dangerous, was negligent in not taking measures to protect her, and hence that her negligence was the sole proximate cause of the injuries, as the court charged. See Atlanta, B. & C.R. Co. v. Loftin, 67 Ga.App. 601, 21 S.E.2d 290. With respect to the second instruction, even though the plaintiff could not by law be guilty of contributory negligence, nevertheless her actions could have been the sole proximate cause of her injuries, which would necessarily exclude the negligence, if any, of the defendant as a proximate cause. 'If . . . the defendant did not owe the plaintiff any legal duty which (he) neglected to perform, no action could be maintained for negligence on (his) part. Actionable negligence does not exist, in the...