Opinion
38297, 38357.
DECIDED JUNE 29, 1960. REHEARING DENIED JULY 13, 1960.
Actions for damages. Case No. 38297 from Athens City Court, before Judge Oldham. February 12, 1960. Case No. 38357 from Clarke Superior Court, before Judge Cobb. April 2, 1960.
Guy B. Scott, Jr., James E. Hudson, for plaintiff in error, case No. 38277, and defendant in error, case No. 38357.
Wilson, Branch Barwick, Thomas S. Bentley, Stephens, Fortson, Bentley Griffin, Robert G. Stephens, Jr., contra.
1. The petitions set forth causes of action; the court did not err in overruling the general demurrer to the petition in case No. 38357; the court erred in sustaining the general demurrer to the petition in case No. 38297.
2, 3. The court erred in sustaining the special demurrers to certain paragraphs of the petition in case No. 38297 as shown in the corresponding divisions of the opinion.
DECIDED JUNE 29, 1960 — REHEARING DENIED JULY 13, 1960.
Mose Gordon Collins, by Jim Collins as next friend, filed his petition in Clarke Superior Court against Ellis DeWitt Alewine and The Loef Company seeking to recover damages for pain and suffering due to injuries received by him in a collision with a truck owned by the defendant company and operated by the defendant Alewine. The petition as amended alleged in pertinent portion the following: "3. On Monday, March 2, 1959, at approximately 2:50 p. m., Mose Gordon Collins, age 14, was riding his new bicycle in a southeasterly direction along Barber Street in the City of Athens, Georgia, at a point in front of the Alexander Wood Products Company, when he met a 1957 Dodge Truck, Georgia Vehicle License Plate 1958, 13-8/H 73, which was driven by Ellis DeWitt Alewine, and owned by The Loef Company. Said 1957 Dodge truck which was driven by Ellis DeWitt Alewine and owned by The Loef Company was proceeding northwest on Barber Street at a speed of 35 to 40 miles per hour. 4. Plaintiff shows that said 1957 Dodge truck was a large 2-1/2 ton truck carrying heavy pipe and other metal for The Loef Company and that attached to the left front door of the cab of said truck, was a large rear-vision mirror which was seven inches wide and seventeen inches tall, said rear-vision mirror being attached by metal arms from the bottom and the top of said mirror to the side of said truck, said metal arms being 19 inches in length and protruding 19 inches past the side of the cab of said truck and protruding seven and one-half inches past the bed of said truck. 5. That Ellis DeWitt Alewine who was driving said truck, was at all times the agent and servant of The Loef Company, and was on the business of The Loef Company at the time that said truck ran over Mose Gordon Collins as alleged hereafter. 6. That a great number of school children were walking on the east sidewalk of Barber Street in a southeasterly direction, said children having just been dismissed from school, and that Ellis DeWitt Alewine was looking to his right at the school children on the east sidewalk of Barber Street and was not looking ahead at the highway (Barber Street) and that Ellis DeWitt Alewine knew by having traveled this street many times before that school children were in said street on foot and on bicycle at this time of day when school let out. 7. That Mose Gordon Collins was riding his bicycle as aforesaid in a southeasterly direction on his right side of the road approximately the center thereof and that the said Mose Gordon Collins, being a child, was struck by the protruding rear-vision mirror and the arms thereof which protruded 19 inches from the side of said truck into an open air space on the left-hand side of said truck. Said Mose Gordon Collins was struck as aforesaid and thrown to the pavement of Barber Street and suffered great, grievous and numerous injuries as will be alleged. Said mirror and arms attached thereto were painted a dull colour which blended in with the color scheme of the truck. That Mose Gordon Collins did not see the arm of the rear vision mirror which was protruding over the left side of said truck driven by defendant, Ellis DeWitt Alewine, and owned by defendant, The Loef Company, due to the fact that he was on his proper side of the road, and was not expecting said rear vision mirror to protrude across into his side of the highway and strike him. That Mose Collins, also, did not see the arm of the rearvision mirror which was protruding over the left side of said truck driven by the defendant, Ellis DeWitt Alewine, and owned by the defendant, The Loef Company, due to the fact that the dull color which the rear-vision mirror and arms to it was painted made it blend in with the dull color which the body of the truck was painted and it was thus not readily discernible and the said Mose Gordon Collins could not tell that this arm protruded over onto his lane of traffic. 8. (Stricken). 9. That the defendant, Ellis DeWitt Alewine, did not sound the horn of the truck which he was driving and which belonged to the defendant, The Loef Company, and gave no warning of his approach or any signal as to the danger which might confront Mose Gordon Collins, a child. 10. When the said 1957 Dodge truck driven by Ellis DeWitt Alewine and owned by The Loef Company, struck Mose Gordon Collins he was thrown, violently and with great force, backwards and against the pavement on Barber Street, causing the following injuries: . . . 13. All of the aforesaid injury and damage was directly and proximately caused by the following acts of negligence on the part of the defendant, Ellis DeWitt Alewine, and the defendant, The Loef Company, as follows: (a) The said Ellis DeWitt Alewine was negligent in driving said 1957 Dodge truck at a speed greater than was reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing and in failing to drive at an appropriate reduced speed when a hazard exists with respect to pedestrians, that is to say, driving said truck at a speed which was greater than reasonable and prudent and in failing to reduce said speed when driving through a known area on Barbara Street where school children walk home and ride home on bicycles from the public school located on Barber Street, and being acts which are negligent per se and in violation of Code section 68-1626 (A) and (C). (b) The said Ellis DeWitt Alewine was negligent in failing to maintain a proper lookout in front of the truck which he was driving as required by the law of Georgia, the same being negligence per se. (c) The Loef Company was negligent in providing a truck for the use of Ellis DeWitt Alewine on which there was attached thereto a rear-vision mirror which protruded 19 inches from the left side of said truck above the open air space to the left of said truck, and which was not readily descernible by a traveler approaching said truck and rear vision mirror attached thereto. (d) The said Ellis DeWitt Alewine was negligent in not sounding the horn on his truck or in giving some warning of his approach when he saw or should have seen Mose Gordon Collins approaching his truck while the said Mose Gordon Collins was riding his bicycle in Barber Street. The negligence herein alleged being a violation of Georgia Code Section 68-1716 (A) wherein it is provided, `the driver of a motor vehicle shall when reasonably necessary to insure safe operation give audible warning with his horn but shall not otherwise use such horn when upon a highway' (Georgia Laws 1953, November session 556, 612). (e) The said Ellis DeWitt Alewine was negligent is not exercising proper precaution upon observing Mose Gordon Collins, a child, approaching him in Barber Street on a bicycle, the same being negligence per se and a violation of Georgia Code Section 68-1658, being acts of November, 1953, November session, pages 556, 593."
Jim Collins, the father of Mose Gordon Collins, subsequently filed his petition in the City Court of Athens against the same defendants seeking to recover damages for medical expenses and loss of services. The pertinent allegations of this petition are substantially the same as those above quoted, with the following exceptions: "7. That Mose Gordon Collins was riding his bicycle as aforesaid in a southeasterly direction on his right side of the road at approximately the center thereof going home from school and that the said Mose Gordon Collins, was struck by the protruding rear-vision mirror and the arms thereof which protrude 19 inches from the side of said truck into an open air space on the left-hand side of said truck. Said Mose Gordon Collins was struck as aforesaid and thrown to the pavement of Barber Street and suffered great, grievous and numerous injuries as will be alleged. Said mirror and arms attached thereto were painted a dull color which blended in with the color scheme of the truck. That Mose Gordon Collins did not see the arm of the rear-vision mirror which was protruding over the left side of said truck driven by defendant, Ellis DeWitt Alewine, and owned by defendant, The Loef Company, due to the fact that he was on his proper side of the road, and was not expecting said rear-vision mirror to protrude across into his side of the highway and strike him. 8. That because of the fact that Mose Gordon Collins is a child age 14, that he is not chargeable with the responsibility of expecting the rearvision mirror of said truck to protrude therefrom into his side of the road and across the center of the road and to strike him on the head. . . 13(a). The said Ellis DeWitt Alewine was negligent in driving said 1957 Dodge truck at a speed greater than 15 miles per hour in a school area in the City of Athens, Georgia, where a great number of children walk to and from school and also in not sounding his horn or warning Mose Gordon Collins, a child, of his approach." In addition, the father's petition omits the allegations contained in paragraph 13(d) and 13(e) quoted above.
The Superior Court of Clarke County overruled the defendant's general demurrers to the amended petition of Mose Gordon Collins and they assign error on this ruling. The City Court of Athens sustained the general demurrer and certain special demurrers to the amended petition of Jim Collins and dismissed the same. The plaintiff, Jim Collins, assigns error on this judgment.
1. The court did not err in overruling the general demurrer to the petition in case No. 38357. The court erred in sustaining the general demurrer to the petition in case No. 38297. The petitions in the two case are substantially the same. The first question to be decided is the meaning of the petitions. They allege in substance that Mose Gordon Collins was riding his bicycle as aforesaid in a southeasterly direction on his right side of the road at approximately the center thereof. In our view, this is an ambiguous allegation and means either that Collins was riding approximately in the middle of his right-hand side of the road or approximately in the the middle of the road as a whole. Construing the petition most strongly against the pleader, the latter construction must be adopted. The fact that the plaintiffs in these petitions do not specify as an item of negligence the fact that the truck was driven on the wrong side of the road lends support, if any is needed, to the construction that we have placed on the petitions. The next question which arises is whether the minor was barred by his own negligence in the circumstances. The burden of the argument of the defendants in the trial courts is contained in a paragraph of their briefs in this court as follows: "Construing the petition most strongly against the pleader, it is obvious that under the factual situation alleged that the boy was in the act of driving his bicycle directly into the oncoming 2-1/2 ton truck of the plaintiff in error. This is palpably clear because the mirror only protruded out 7 1/2 inches wider than the truck bed, which was obviously directly behind the cab. If the mirror struck defendant in error in the head, as originally alleged, then certainly under normal physical conditions, the left side of the 14-year-old boy's body would have assumed more than 7 1/2 inches of space to the left of the position of his head. Had he not been struck by the mirror, he would have driven the bicycle into the bed of the truck immediately behind the cab. If the truck were traveling 35 to 40 miles per hour as alleged, certainly there would have not been more than a very fraction of a second before the bed of the truck would have hit the defendant in error." The fallacy in this argument is the statement that the left side of the fourteen-year-old boy's body would have "assumed" more than seven and one-half inches of space to the left of the position of his head. This statement overlooks the consideration of the fact that the width of one-half of the plaintiff's head is left out of the picture. It does not appear from the allegations in the petition that if the minor had not been struck by the mirror he would have driven the bicycle into the bed of the truck immediately behind the cab. We think there is plainly a question for the jury as to whether the defendants in the trial court were negligent in driving so closely to the center of the road that the rear-view mirror extended over and beyond the truck operator's side of the road. We do not think that under the allegations of the petition the minor was barred as a matter of law by his own negligence in operating his bicycle so closely to the truck. It does not appear as a matter of law that he actually discovered the alleged negligence of the driver of the truck in time to avoid it or that he could have done so by the exercise of ordinary care. This case is one which has to be decided on its own facts, and it is impossible to find a precedent for guidance in the decision in this case. The case most nearly resembling this one is that of Countryman v. Coogler, 157 F.2d 503. In that case the court held that: "(2) Appellants insist that regardless of the width of the truck, and irrespective of whether or not the truck was being operated to the left of the center of the road, there should be no recovery under Georgia law. They contend that Billy Coogler's death was `caused by his own negligence and want of ordinary care for his own safety,' and that he `assumed the risk' when he prepared to transfer from his seat while the coupe was in motion. The Georgia cases cited by appellants are not applicable to the facts of this case. Cf. Taylor v. Morgan, 54 Ga. App. 426 ( 188 S.E. 44); Smith v. Central Railroad Banking Co., 82 Ga. 801 ( 10 S.E. 111). In the Taylor case, strongly relied upon by appellants, the deceased was standing on a running board with his body protruding beyond the car, while the car was traveling along a dusty road. In the case at bar the evidence does not demand a finding by the triers of fact that Billy Coogler placed himself in such a position as to bar recovery. Indeed, the evidence here is clear and strong that Billy Coogler merely stood up in his seat and leaned forward against the canvas covering over the front seat. No part of his body was protruding beyond the sides of the coupe into the path of the oncoming truck. But for the negligence of the truck driver in operating his vehicle to the left of the center of the highway, and but for the negligently excessive width and protrusion of the rear-view mirror, Billy Coogler would not have been killed. Moreover, if it be conceded that Billy Coogler was negligent in making the moves he made within the coupe, recovery would not be barred under Georgia law, but the jury should have considered his negligence, if any, and compared it with the negligence of the defendants and reduced the damages accordingly. We conclude that this was exactly what the jury did, since no objection is lodged against the court's charge to the jury and the charge is not set out in the record. Atlantic Ice Coal Co. v. Folds, 47 Ga. App. 832 ( 171 S.E. 581); Georgia C. N. Railway Co. v. Watkins, 97 Ga. 381 ( 24 S.E. 34); Savannah Electric Co. v. Crawford, 130 Ga. 421 ( 60 S.E. 1056); Western A. R. Co. v. Fergerson, 113 Ga. 708 ( 39 S.E. 206, 54 L.R.A. 802)." The facts alleged make jury questions as to whether the defendants in the trial court were negligent, whether the minor's negligence bars the plaintiffs from recovery and if not, the question of the minor's negligence, if any, as compared with that of the defendants in the trial court.
2. In case No. 38297 the trial judge sustained two special demurrers to allegations of the petition. The petition alleged: "That the defendant, Ellis DeWitt Alewine, did not sound the horn of the truck which he was driving and which belonged to the defendant, The Loef Company, and gave no warning of his approach or any signal as to the danger which might confront Mose Gordon Collins." The Ga. L. 1953, Nov. Sess., pp. 556, 612 ( Code Ann. § 68-1716) provides in part as follows: "The driver of a motor vehicle shall when reasonably necessary to insure safe operation give audible warning with his horn but shall not otherwise use such horn when upon a highway." Ga. L. 1953, Nov. Sess., pp. 556, 593 ( Code Ann. § 68-1658) provides in part as follows: "Notwithstanding the foregoing provisions of sections 68-1653 through 68-1660 every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway." Under the foregoing statutes we think the petition in case No. 38297 presented a jury question as to whether in the exercise of ordinary care under the circumstances the driver of the truck should have sounded his horn as a warning to the minor child, as it cannot be said as a matter of law, in our opinion, that the driver of the truck owed no such duty. The court erred in sustaining the special demurrers to this paragraph of the petition.
3. Paragraph 13 (a) of the petition in case No. 38297, which was attacked by special demurrer, alleged: "The said Ellis DeWitt Alewine was negligent in driving said 1957 Dodge truck at a speed greater than 15 miles per hour in a school area in the City of Athens, Georgia, where a great number of children walk to and from school, also in not sounding his horn and warning Mose Gordon Collins, a child, of his approach." The court erred in sustaining the special demurrer to this paragraph for the reason that it seems clear that the allegations raise a question for the jury whether the truck was being operated at a speed which was greater than reasonable and prudent as required by Ga. L. 1953, Nov. Sess., pp. 556, 575 ( Code Ann. § 68-1626 which provides in part: "No person shall drive a vehicle on a street or highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing." This allegation is simply an allegation that the driver of the truck was guilty of ordinary negligence under the circumstances. The court erred in sustaining the special demurrers directed at this paragraph of the petition.
The court did not err in overruling the general demurrer to the petition in case No. 38357. The court erred in sustaining the general and special demurrers to the petition in case No. 38297.
Judgment in case No. 38357 affirmed. Judgment in case No. 38297 reversed. Nichols and Bell, J J., concur.