Opinion
45015.
ARGUED JANUARY 9, 1970.
DECIDED MARCH 4, 1970.
Action for damages. Cobb Civil and Criminal Court. Before Judge Bullard.
Edwards, Bentley, Awtrey Parker, Scott S. Edwards, Jr., for appellants.
Jean E. Johnson, Sr., for appellee.
The defendants appeal from the denial of a summary judgment, contending that the evidence on motion for summary judgment eliminates negligence of the driver of a vehicle as the cause of inquiries to a nine-year-old child who was struck by the vehicle when he suddenly entered the street on the driver's right from between two parked automobiles in a school zone.
Whether the driver was operating the vehicle "at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing" or at an appropriate speed "when special hazards exist with respect to pedestrians" (see Code Ann. § 68-1626 (a, c)) as negligence proximately causing the child's injuries is properly a matter for jury determination, and not for determination by the court under the evidence submitted in this case on motion for summary judgment. See Southern Bell Tel. c. Co. v. Beaver, 120 Ga. App. 420 ( 170 S.E.2d 737); Kennedy v. Banks, 117 Ga. App. 197 ( 160 S.E.2d 208); s.c., 119 Ga. App. 831 ( 169 S.E.2d 180); Christian v. Smith, 78 Ga. App. 603 ( 51 S.E.2d 857); Hieber v. Watt, 119 Ga. App. 5 ( 165 S.E.2d 899); Blair v. Rayburn, 120 Ga. App. 57 ( 169 S.E.2d 679).
The opinions of speed or that the incident was unavoidable will not support a summary judgment. Opinion testimony of an ultimate material fact is never sufficient to authorize the grant of a summary judgment. Harrison v. Tuggle, 225 Ga. 211 (2) ( 167 S.E.2d 395); Ginn v. Morgan, 225 Ga. 192 ( 167 S.E.2d 393); Truluck v. Funderburk, 119 Ga. App. 734 ( 168 S.E.2d 657); General Motors Corp. v. Wilson, 120 Ga. App. 156 ( 169 S.E.2d 749); Williams v. Melton, 120 Ga. App. 466 ( 171 S.E.2d 318).
Judgment affirmed. Eberhardt and Pannell, JJ., concur.