Opinion
34297.
DECIDED DECEMBER 5, 1952. REHEARING DENIED DECEMBER 19, 1952.
Action for damages; from Hall Superior Court — Judge Edmondson. August 12, 1952.
Rafael A. Rivera-Cruz, Charles E. Beard, G. Fred Kelley, for plaintiff in error.
Wheeler, Robinson Thurmond, Jeff C. Wayne, Nall Sterne, contra.
The petition of a student, alleged to have been injured by the negligence of the defendant private school, does not show, as a matter of law, that the plaintiff's negligence, in itself or in concurrence with that of another of the defendant's pupils, was the proximate cause of the plaintiff's injury, or that the defendant's alleged negligence was not one of the causes of such injury; and, as the petition set out a case in which the questions of negligence and of proximate cause should be submitted to a jury, it was error to sustain the general demurrer thereto and to dismiss the plaintiff's action.
DECIDED DECEMBER 5, 1952 — REHEARING DENIED DECEMBER 19, 1952.
Carlos A. Marques Jr. brought suit by next friend against Riverside Military Academy Inc., alleging in his amended petition substantially as follows: The defendant is engaged in the business of operating a military academy and, for a valuable consideration, receives boys for academic, military and athletic education. The plaintiff had been received by the defendant as a paying student, and the defendant knew that the plaintiff was an infant, 17 years of age, immature and incapable of exercising the degree of care and caution expected and required of an adult. The defendant undertook both the care and instruction of the plaintiff, in consideration of the money paid to it, and was bound to exercise ordinary care for the safety of the plaintiff. As a part of its program and business, the defendant instructed its pupils or cadets in various athletic activities, including baseball and discus throwing. For the purpose of such instruction, the defendant maintained an athletic field upon which its cadets engaged in various games and activities under the defendant's direction and supervision. This athletic field consisted of an elliptical track, enclosing other athletic grounds, and an adjacent baseball field. No pathway or other defined route, protected by fence, shelter or otherwise, was provided for cadets coming to or going from the various parts of the athletic field. On May 2, 1949, the plaintiff and other cadets were engaged in playing baseball on the field adjacent to the elliptical track, and N.W. Masters and other cadets were engaged in the activity of throwing the discus on the grounds within the track. The plaintiff entered the area commonly used by cadets entering and leaving the baseball field, and, as he advanced along this undefined way, he was struck in the head and face by a discus thrown by Masters, and suffered severe injuries. The discus thus thrown was made of plastic or baked clay, weighed approximately four pounds, had a comparatively sharp edge and, when thrown, constituted a dangerous instrumentality, and the defendant knew this. As a part of the defendant's program, all cadets were encouraged and required to participate in some form of athletics unless otherwise engaged, and under this requirement the plaintiff was practicing baseball, in obedience to the rules prescribed by the defendant's cadet regulations. When the plaintiff left the area where he had been practicing baseball and entered the area where he was injured and which was commonly used by cadets leaving the baseball field to return to the gymnasium, there was nothing to warn him that a discus was about to be thrown, and neither Masters nor anyone else was then making any effort or motions to throw the discus. The plaintiff was ignorant of any danger in connection with discus throwing at that time and place, and in the course of his progress across the area. When the plaintiff left the baseball practice field and entered the area where he was struck by the discus, the defendant's officers, instructors and coaches in charge of the cadets engaged in baseball practice, and those in charge of the cadets engaged in practicing the discus throw, observed and knew of the plaintiff's presence in the area where he was struck, or, in the exercise of due diligence, should have known that the plaintiff was in this area of danger, and they also observed and knew of Masters' preparation and motions to throw the discus before he threw it, but they failed to warn or notify the plaintiff that the discus was about to be thrown, and they negligently permitted Masters to throw the discus after observing the plaintiff in the danger zone. The plaintiff was injured by reason of such negligence, together with the defendant's negligence: (a) in laying out its athletic field so that cadets participating in one activity would, when approaching or leaving the field, be endangered by those participating in another activity on an adjoining field; (b, c) in failing to provide a definite route or pathway, protected by fence, shelter or otherwise, to and from its athletic field; (d) in failing to warn the plaintiff of an imminent danger; (e, f) in permitting the plaintiff to enter a zone where his life was in danger; (g, h) in permitting Masters to throw the discus while the plaintiff was in that area where it was likely that he would be hit; (i) in conducting the activities of baseball and of throwing the discus on adjacent fields, when the defendant knew or should have known that there was imminent danger to its cadets; (j) in failing to supervise properly the described athletic activity; and (k) in failing to exercise over its cadets the complete control, custody and supervision with which it was vested, in order to prevent the injuries to the plaintiff. The plaintiff was permanently injured, and his injuries were proximately caused by the negligence of the defendant. By such care and caution as he was capable of exercising, the plaintiff could not have avoided the injury to himself.
The general demurrer to the petition was sustained, and the plaintiff excepted.
The defendant is alleged to be a private school or military academy, providing education along academic, military, and athletic lines to its pupils or cadets, in return for their tuition fees. Its regulations require all cadets to participate in some form of athletics; and, pursuant to such regulations, the plaintiff had been practicing baseball near an oval running track, within which were conducted field events, such as the discus throw. It is alleged that Cadet Masters and others were throwing the discus on the field inside the track, and so, apparently, the "undefined way" which cadets commonly used to return to the gymnasium from the baseball field passed across the track and across the field within the track where the discus was being thrown. The plaintiff is alleged to have been ignorant of any danger in connection with discus throwing as he went along the route or "undefined way" in returning to the gymnasium from the baseball field, since no one was then making any of the usual motions preliminary to throwing the discus. It is also alleged that the defendant's officers should have seen, in the exercise of due diligence, the plaintiff as he entered the area of danger, and that they did observe Masters' motions preparatory to throwing the discus, but failed to warn the plaintiff or to prevent Masters from completing his throw. It is contended that ordinary care for his own safety required the plaintiff to have noticed Masters preparing to throw the discus, just as ordinary care for their pupils' safety required the defendant's officers to have looked out for the plaintiff in the area of danger, but, in view of the plaintiff's alleged ignorance of the danger of being hit by a discus, this is a question to be determined by a jury.
The defendant's alleged negligence in laying out its playing fields without protecting its students engaged in one activity from the dangers of other athletic activities conducted nearby existed prior to the plaintiff's injury, and, in this respect, it may be said, as contended by the defendant, that the plaintiff could have avoided the effects of such negligence or that he assumed the risk of known dangers. However, the alleged negligence of the defendant, in failing to supervise the activity of discus throwing so as to prevent injury to its cadets therefrom, does not appear to have been such negligence as the plaintiff could have known of and so avoided, or it may have been an unforeseen risk which he could not be said to have assumed. All questions as to diligence and negligence, including contributory negligence and what negligence constitutes the proximate cause of the injury complained of, are questions for a jury, except in plain and indisputable cases.
The defendant, by voluntarily undertaking to educate the plaintiff, assumed to some extent a parent's duty to care for his child while educating him and to shield and protect such child from injury. While a child of 17 is presumptively considered to be chargeable with the same degree of diligence for his own safety as an adult ( Muscogee Mfg. Co. v. Butts, 21 Ga. App. 558 (1), 94 S.E. 821; Central R. Bkg. Co. v. Phillips, 91 Ga. 526 (2), 17 S.E. 952), nevertheless, this does not relieve the defendant private school from its duty of exercising ordinary care for the safety of its pupils from defects in the premises or from dangerous activities in which other pupils are engaged under the defendant's supervision. See American Law Institute, Restatement, Torts, § 320, and comment.
The defendant also contends that the allegations of the petition show that, even if the defendant was negligent, the act of Cadet Masters in throwing the discus was an independent, intervening cause which broke the causal connection between any negligence on the part of the defendant and the injury sustained by the plaintiff. But in view of the defendant's alleged negligence in failing to supervise properly the activity of throwing the discus, this contention cannot be sustained. It is alleged that the defendant's officers, instructors, or coaches were directing and supervising Masters and others who were practicing the discus throw. The petition shows that the defendant, through its officers, had control over Masters, but failed to exercise such control so as to prevent injury to the plaintiff. The defendant, charged with supervision of the athletic activities of its pupils, cannot, by failing to exercise the control over its students with which it has been invested by their parents, absolve itself from liability for the uncontrolled acts of its students which are likely to result in injury to other students. In a dangerous activity, such as throwing the discus appears to be, the defendant cannot fail, as alleged, to exercise due care in supervising such activity, and then contend that it could not have foreseen that the negligence of one of its pupils, whom it was supposed to have been controlling, would injure another of its students.
The plaintiff here was not a paying spectator at an athletic event, nor was he a participant in the athletic activity which caused his injury, and these facts distinguish the cases of Hunt v. Thomasville Baseball Co., 80 Ga. App. 572 ( 56 S.E.2d, 828), and Hale v. Davies, 86 Ga. App. 126 ( 70 S.E.2d 923), from the present case. The petition does not show, as a matter of law, that the plaintiff's negligence, in itself or in concurrence with that of Cadet Masters, was the proximate cause of the plaintiff's injury, and it cannot be said that the defendant's alleged negligence had nothing to do with the injury produced or was not one of the causes thereof.
The petition set out a case in which the questions of negligence and proximate cause should be submitted to a jury, and it was error to sustain the general demurrer thereto and to dismiss the plaintiff's action.
Judgment reversed. Felton and Worrill, JJ., concur.