Opinion
34121.
DECIDED OCTOBER 17, 1952. REHEARING DENIED NOVEMBER 12, 1952.
Action for damages; from Richmond Superior Court — Judge Anderson. April 24, 1952.
Harris, Chance McCracken, for plaintiff in error.
Cumming, Nixon Eve, contra.
The court erred in sustaining the general demurrer to the petition and in dismissing the action.
DECIDED OCTOBER 17, 1952 — REHEARING DENIED NOVEMBER 12, 1952.
Mrs. Lonnett Foskey Ivey, a minor suing by her next friend, Mrs. Lonnie Foskey, her mother, brought this suit against Marion S. Symms, and in her petition made the following allegations, in substance: Wrightsboro Road is a paved road in Richmond County, extending westward about five miles from the City of Augusta, and it is served by the Augusta Coach Company, a motor carrier of passengers for hire. At about 6:20 p. m., on January 22, 1952, the plaintiff was a passenger on a bus of the Augusta Coach Company traveling west on the Wrightsboro Road two miles from Augusta. Her destination was a mail box on the north side of the road, with the name "G. A. Ivey" placed thereon; on the south side of the road, opposite this mail box, a driveway runs south from the road for a distance of one hundred yards to the plaintiff's home. The bus on which the plaintiff was riding drew up within four or five feet of said mail box, where the plaintiff got off. She looked into the mail box, taking not more than five seconds to do so, and then went around the rear end of said bus to cross the highway and enter the driveway leading to her home. Wrightsboro Road is open, clear, and practically flat for a distance of 1000 feet west from this point, and the said mail box is clearly visible from the west at that distance. The pavement of the Wrightsboro Road is 16 feet wide. When the plaintiff came around the rear of said bus, she was running, and she observed an automobile traveling eastward on the road, approaching the bus in the opposite direction from the way the bus was headed. It appeared to the plaintiff that she had ample time to cross to the south side of the road. When she reached a point two feet from the south side of the road, she was struck by the right fender of the defendant's automobile, thrown a distance of 40 feet into the ditch on the south side of the road, and severely injured. The defendant's automobile continued to travel for about 100 feet after striking the plaintiff. Had the automobile driven by the defendant been operated at a reasonable speed, the plaintiff would have had ample time to cross the road in safety; and had the automobile been under the immediate control of the defendant, as the statutes in such cases provide, the plaintiff would not have been struck. The defendant was guilty of negligence per se in not having his automobile under his immediate control, contrary to Code § 68-304. The defendant's visibility was unobstructed as he approached the bus from the west, and he had a clear and unobstructed view of the bus and the mail box for a distance of at least 1000 feet. The defendant saw the bus stop at the mail box and discharge the plaintiff, or could have so seen with the slightest degree of care, in that the bus, mail box, and the plaintiff being discharged were clearly in front of the defendant. There was no path, road, or driveway leading north from the highway at or near the mail box, and the only intersecting driveway was the one across the road from the mail box. The defendant knew, or with the exercise of ordinary care would have known, that the plaintiff was going to cross the highway from the rear of the bus after alighting from it. The bus, as it stopped, and the plaintiff, as she got off the bus and walked around the rear of the bus to cross the highway, were at all times clearly visible to the defendant. No one was at the mail box to be taken on the bus as a passenger, and the defendant, in approaching the bus and seeing it draw to a stop, knew, or in the exercise of ordinary care would have known, that the bus was preparing to discharge a passenger. The plaintiff was the only passenger discharged, and she got off in a normal and ordinary manner, clearly visible to anyone west of the bus within a distance of 1000 feet. The bus upon which the plaintiff was riding was a large urban bus with a seating capacity of about 35, and was painted cream trimmed with red. It had a lighted front sign above the windshield marked in large illuminated letters, "Wrightsboro Road," thereby apprising any approaching motorist of the fact that the bus was a local city bus. The plaintiff's injuries were the direct result of the negligence and recklessness of the defendant, who was negligent in the following particulars: (a) in failing to have his automobile under his immediate control, contrary to statutory provisions; (b) in driving his automobile beyond the rear portion of the bus, knowing that a passenger had been discharged and was traveling toward the rear of the bus immediately thereafter; (c) in continuing to travel down said highway at a rapid and dangerous rate of speed, knowing that said bus had just discharged a passenger; (d) in continuing to drive said automobile down said highway, knowing that a person was likely to come from behind said bus to cross said highway and enter the intersecting driveway; (e) in failing to observe the plaintiff when the view was unobstructed in time to stop said automobile before running the plaintiff down; (f) in failing to bring his automobile to a stop after observing the plaintiff in the path thereof: (g) in failing to observe that the bus was discharging a passenger when the defendant had ample opportunity to do so; (h) in failing to have his automobile under his immediate control after observing that the bus was discharging a passenger; and (i) in driving his automobile at a speed of approximately fifty miles per hour when the defendant knew, or by the exercise of ordinary care would have known, that he was approaching a bus discharging a passenger. The nature and extent of the plaintiff's injuries were also alleged in the petition.
The court erred in sustaining the general demurrer to the petition. The allegations of the petition do not show unequivocally and as a matter of law that the plaintiff ran into the path of the defendant's oncoming vehicle under circumstances under which the defendant could not have avoided injuring her by the exercise of ordinary care. The petition alleges that the plaintiff got within two feet of the south side of the road toward which she was traveling. Since the petition does not show facts which demand the finding that the plaintiff's conduct was such as to make it impossible for the defendant to avoid injuring the plaintiff by the exercise of ordinary care, the questions involved should be submitted to a jury. In view of what has been said, we do not think that the cases cited in the dissent are applicable to the facts in this case.
The court erred in sustaining the general demurrer to the petition.
Judgment reversed. Gardner, P.J., Townsend and Carlisle, JJ., concur. Sutton, C.J., and Worrill, J., dissent.
"One who recklessly tests an observed and clearly obvious danger, such as attempting to beat a near and rapidly approaching railroad train or street-car over a crossing, or to pass an intersecting highway in front of a near and speeding automobile having the right of way, notwithstanding his own honest but mistaken judgment that he has ample time to get across, may, under the particular facts, be held to have failed to exercise `that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances' (Code, § 105-201), and to be guilty of contributory negligence which will be deemed the proximate cause of his resulting injury, and, in the absence of wilful or wanton misconduct by the defendant, will preclude his recovery. In such plain and palpable cases, whenever the pleadings or the evidence so disclose, the courts will so hold as a matter of law, on demurrer, or nonsuit, or by direction of a verdict." Laseter v. Clark, 54 Ga. App. 669, 670 ( 189 S.E. 265). "One who deliberately goes upon a railroad track in front of an approaching train, thinking that she can cross before the train reaches her, and miscalculating its speed because she is in front of it, can not recover for injuries resulting from being run down by the train, although the company's servants may have been negligent in running at a high rate of speed at that point, and also in failing to check the speed of the train at a public road which crossed the track between the place where the train was when first seen by the plaintiff and the point at which the injury occurred. The above facts being set out in a declaration, a demurrer thereto was properly sustained; for it is clear, from the allegations made, that the plaintiff, by the exercise of ordinary care, could have avoided the injury." Thomas v. Central of Georgia Ry. Co., 121 Ga. 38 ( 48 S.E. 683); Code, § 105-603. "Whether a plaintiff's contributory negligence is the proximate cause of his injury, or he is injured by reason of his failure to exercise ordinary care for his own safety, the result to him is the same — he cannot recover." Porter v. Southern Ry. Co., 73 Ga. App. 718, 721 (1) ( 37 S.E.2d 831). Also see Lord v. Southern Ry. Co., 70 Ga. App. 273 ( 28 S.E.2d 299).
Applying the principles laid down in the cases above cited to the facts alleged in the petition, it does not appear to me that the plaintiff is entitled to recover. The petition alleges that the plaintiff, a married woman seventeen years of age, got off a bus on the right side of the highway, looked into her mail box, which took only about five seconds, and ran around the rear of the bus to cross the highway in order to go to her home. It is alleged that the plaintiff was visible to anyone traveling on the highway toward the bus and in the opposite direction, as was the defendant, for a distance of 1000 feet, for the road was straight and practically flat. These allegations also show that the defendant's car, proceeding toward the bus on the other side of the highway, must have been visible to the plaintiff. Furthermore, the defendant's intention to continue on his way along the road must have been apparent to the plaintiff, while the plaintiff's intention to cross the highway was not indicated until she turned onto the highway behind the bus which obstructed the defendant's view of the plaintiff. It is alleged that, when the plaintiff came around the rear of the bus, she was running; that she observed the defendant's automobile; and that it appeared to her that she had ample time to cross to the other side of the road. These allegations show that the plaintiff failed to exercise ordinary care to avoid the consequences to herself of the defendant's operation of his automobile, which she could have seen when she got off the bus and which she observed when she came from behind the bus. The plaintiff, choosing to test a known and obvious danger by running from a place of safety across the path of the defendant's approaching automobile and by suddenly appearing in front of the defendant from behind the stopped bus, cannot hold the defendant liable, in the absence of wilful or wanton misconduct on his part, for the injuries occasioned by her own miscalculation or mistake in judgment in thinking that she could get across the road before the defendant reached the point of her attempted crossing.
In my opinion, the court did not err in sustaining the general demurrer to the petition and in dismissing the action. Judge Worrill concurs in this dissent.