Opinion
37381.
DECIDED OCTOBER 27, 1958.
Action for damages. Albany City Court. Before Judge Jones. August 14, 1958.
Ray Y. Cross, Colquitt H. Odom, for plaintiffs in error.
Robert W. Reynolds, contra.
Properly construed on general demurrer the petition shows that the plaintiff failed to exercise ordinary care for his own safety and that his negligence was the proximate cause of his injuries.
DECIDED OCTOBER 27, 1958.
Ronald Davis, by next friend, sued John C. Gamble, Frances E. Gamble, Clyde Gamble and Irene Gamble for damages allegedly caused by the defendants' negligence. The plaintiff's petition alleged in part as follows: "5. The defendant and co-defendants herein resided at 1413 Lincoln Avenue in the City of Albany on December 24, 1957. 6. Plaintiff resides at 1421 Lincoln Avenue with his parents which residence is 4 houses west of the residence of the defendants, and for the past 4 or 5 years it has been the custom and habit for plaintiff and other children in the neighborhood to play in and about the residences located in the 1400 block of Lincoln Avenue. 7. At or about 4 o'clock p. m. on December 24, 1957, plaintiff was playing in the front yard of his home at 1421 Lincoln when he heard several firecrackers explode down in the back yard of 1413 Lincoln. Plaintiff had never seen any firecrackers being exploded and he walked down to 1413 Lincoln as he had done many times before. 8. Cecil Gamble, a minor approximately 11 years of age, was exploding firecrackers approximately 30 feet from the back door of the premises at 1413 Lincoln. Said firecrackers had been furnished to Cecil Gamble by the defendant and codefendants herein and the firecrackers were being exploded with the knowledge and consent of the defendant and codefendants herein. 9. Some few minutes after plaintiff had arrived at the rear of 1413 Lincoln, Cecil Gamble lit a firecracker which did not explode after the lapse of several seconds, and plaintiff thinking that the fuse on the firecracker had burned out, walked over to the firecracker and leaned down to pick it up when the firecracker exploded directly into his face." The plaintiff alleged that as a result of the explosion he was injured in enumerated particulars. The plaintiff further alleged: "11. The direct and proximate cause of the injuries and damages suffered by plaintiff was caused by the negligence of the defendant and codefendants and they were negligent in the following manner, to wit: (1) In permitting firecrackers to be exploded on the premises at 1413 Lincoln Avenue. (2) In failing to warn plaintiff that the firecrackers were dangerous and might explode after a delay of several seconds. (3) In failing to anticipate that plaintiff or some other child might be injured by a delayed explosion of a firecracker."
The plaintiff then amended his petition as follows: "The firecrackers furnished to said minor by the defendant and codefendants herein contained combustible explosive powders which produced a visible and audible effect upon being exploded and these firecrackers hereinbefore referred to were being ignited and exploded with the express direction and authority of the defendant and codefendants and on this occasion they did not have a permit to ignite or explode any firecrackers from the State Fire Marshal nor had they posted a bond in the sum of not less than $1000 all of which is in violation of the law of Georgia and is negligence per se."
The defendants' demurrer to the amended petition was overruled and they except.
The petition is subject to general demurrer in only one respect (see Milton Bradley Co. v. Cooper, 79 Ga. App. 302, 53 S.E.2d 761), and that is that it states that the plaintiff was a minor but does not state the plaintiff's age. A minor is one less than twenty-one years of age. Properly construed on general demurrer, the petition shows that the plaintiff was of sufficient age to be held to the duty of exercising ordinary care for his own safety. So construed the petition shows that the plaintiff, being under such a duty, was the author of his own misfortune and that his negligence in attempting to pick up the firecracker was the proximate cause of his injuries.
The court erred in overruling the general demurrer.
Judgment reversed. Quillian and Nichols, JJ., concur.