Glover v. Dixon

The petition set forth a cause of action, and the court did not err in overruling the defendant's general demurrer.

DECIDED OCTOBER 28, 1940. REHEARING DENIED NOVEMBER 16, 1940. STATEMENT OF FACTS BY SUTTON, J. Mrs. O. F. Dixon brought suit against James N. Glover doing business under the name of Nehi Bottling Company, to recover as damages the full value of the life of her infant son, on account of the homicide of the child. The petition, stripped of certain allegations stricken on special demurrer, alleged that at the time of the homicide complained of the defendant was engaged in the business of bottling and selling various beverages, and in that connection operated several automobile trucks, among them the truck involved in the homicide, which consisted of a cab and flat, wooden body approximately twenty-two feet long, the truck and body being painted in bright colors and bearing signs and advertising matter printed in brilliant lettering, the whole being designed to and does attract attention; that the floor of the body of the truck is approximately thirty-six inches from the ground, and is wide enough to extend over the rear wheels; that the running-board extends only as far as the rear edge of the cab; that approximately two and a half feet behind the cab is an iron step or ladder fastened to each side of the body for use in climbing onto the truck, and the bottom rung of said ladder is approximately twelve inches from the ground; that by reason of its brilliant coloring, its unusual size and shape, the many kinds of vari-colored bottled beverages loaded upon it, and the position of the ladder being within easy reach of a small child, the truck was peculiarly attractive to plaintiff's son and to other children of tender years, and perilous to those who might be attracted to it and catch or climb upon it, all of which was known to defendant and its servants and agents; that on August 23, 1939, and for several years previously, there was located upon the southwest corner of Lincoln and Thirty-third Streets in the City of Savannah a neighborhood store known as the "Friendly Corner," where large numbers of children customarily congregated, the neighborhood being thickly populated, and said "Friendly Corner" being a popular gathering place for children in the neighborhood, including plaintiff's son, all of which was known to defendant and its servants and agents; that the truck customarily stopped at the "Friendly Corner" to deliver beverages and receive empty bottles about 12:30 p. m. each day; that when the truck called at said store it was the custom of small children, including plaintiff's son, there congregated, to cling and climb upon the truck and play thereon, all of which was known to defendant and its servants and agents; that on said date and hour defendant's truck was stopped by W. G. Bazemore, white, and Joseph Brown, colored, they being agents, servants, and employees of the defendant, and being at said time about, upon, and in the prosecution of their master's business, and acting within the scope of their employment and authority, at the "Friendly Store" in accordance with the custom, and they left the truck parked against the curb on the south side of Thirty-third Street, facing east, the rear of the truck being just east of the intersection of Thirty-third and Lincoln Streets; that they left the truck unguarded and went into the "Friendly Corner," where they remained approximately ten to fifteen minutes, and then returned to the truck; that in accordance with the custom of the children, the plaintiff's son, Billy Morgan, aged six years, climbed upon the truck and was on the right side thereof and in plain view of the defendant's servants and agents when they returned from the store to the truck; that upon approaching the truck defendant's servants and agents drove plaintiff's son off of the right side of the truck, and immediately entered the cab of the truck, and without any warning started the truck suddenly in motion and drove east on Thirty-third Street; that with gross and wanton negligence they started the truck suddenly in motion, without investigating to see whether or not plaintiff's son or others of the said children, who had remained in close proximity to the truck, were upon the left side thereof or otherwise hanging or climbing thereon or in close proximity thereto; that they knew, or in the exercise of ordinary care should have known, that plaintiff's son and other children of tender years, acting upon a childish impulse, and in accordance with practice, would renew their attempts to get upon the truck, and that any child so hanging or clinging thereon or thereto would be subjected to imminent danger and peril when the truck was started in motion, although such child would be unaware of such danger and peril; that after being driven from the right side of the truck the plaintiff's son immediately ran to the left side, where he climbed upon the bottom rung of the ladder just to the rear of the cab of the truck, and was in such position when the truck was suddenly and without warning started in motion; that the position of the child was plainly apparent to the agents and servants of the defendant, and could readily and easily have been seen by them merely by turning their heads and looking to the rear out of the left door of the cab or by looking through the rear window of the cab, but with gross, wanton, and reckless disregard for the safety of plaintiff's son, without taking any precaution for his safety, and without making any investigation whatever to determine whether he was on the truck, Brown, who was at the wheel acting under the instructions of Bazemore, suddenly and without any warning started the truck in motion and drove it eastwardly on Thirty-third Street to Habersham Street, a distance of one city block, and at Habersham Street turned the truck sharply and suddenly to the left or north on Habersham Street, with such suddenness and violence that plaintiff's son was caused to lose his grip, and without any opportunity to save himself was hurled and thrown beneath the left double wheels of the truck, which passed over his head, body, and legs, at approximately the center of the intersection of Thirty-third and Habersham Streets; that following said injury he was taken to a hospital where he died as a direct result of the injuries inflicted when the truck ran over him; that the negligence of the defendant, by its servants Bazemore and Brown, consisted of the following specific acts of gross, wilful, and wanton negligence and carelessness: (a) in starting the truck suddenly in motion, without ascertaining whether plaintiff's son was thereon, after having first had actual notice and knowledge that he and the other children of tender years were congregated around and climbing on the truck; (b) in driving off while the plaintiff's son was upon the truck and in a position which the driver Brown, and Bazemore, knew, or in the exercise of ordinary care should have known, was dangerous; (c) by failing to allow plaintiff's son an opportunity to get safely off of the truck before starting it suddenly in motion; (d) by failing to ascertain that plaintiff's son had reached a place of safety before starting the truck suddenly in motion; (e) by starting the truck suddenly in motion before plaintiff's son was afforded an opportunity to descend from his position of peril thereon; (f) by failing to keep a proper lookout to ascertain whether or not plaintiff's son and the other children were clear of the truck on the left as well as the right side thereof, before starting it in motion suddenly and without any warning; (g) by failing to discover plaintiff's son upon the truck in a position of peril before turning it suddenly, sharply, and violently north into Habersham Street; (h) in turning the truck suddenly, sharply, and violently north into Habersham Street, thus throwing plaintiff's son under the wheels; (i) in driving the truck over plaintiff's son and killing him; (j) in driving the truck for fully a block with plaintiff's son hanging thereon in a position of peril within plain view of defendant's servants, and not stopping the truck and giving him an opportunity to alight; (k) in driving the truck with plaintiff's son in a position of peril and in full view of defendant's servants, without slackening the speed or in any manner assisting him to avoid injury and death; (l) in failing to discover the perilous position of plaintiff's son, which the defendant should and would have discovered in the exercise of ordinary care. It was alleged that because of his tender age plaintiff's son was not chargeable with contributory negligence, and that the gross and wanton negligence of defendant by his servants and agents was the sole and proximate cause of the fatal injuries so inflicted. It was alleged, that services rendered by the child to the plaintiff were worth three dollars per week, that by the time he would have become twenty-one years of age he would have been capable of earning twenty-five dollars per week; that he had an expectancy of 51.17 years; and that the plaintiff was entitled to recover $25,000 as the full value of her son's life, and special damages.

The defendant filed demurrers on general and special grounds. Some of the special grounds were sustained and others overruled. The general demurrer also was overruled. The defendant excepted. In Cohn v. Buhler, 30 Ga. App. 14 (116 S.E. 864), it was held that the law placed upon the driver of an automobile the duty to use ordinary care, or such care as every prudent man should exercise in the same or similar circumstances, after the infant child was or, in the exercise of ordinary care on the driver's part, should have been seen by him, to avoid injuring such child. In Smith v. Kleinberg, 49 Ga. App. 194 (174 S.E. 731), this court held that it is the duty of those driving automobiles at a place on a public street in a populous locality of a city, where they know that a crowd of people is accustomed to gather or where such crowd is in their plain view, especially in the case of small children who might be playing in the streets, to be vigilant and cautious in exercising, in such circumstances, ordinary care which the law requires.

In paragraphs 11, 12, and 13 of the petition it is alleged, that in accordance with their custom certain children, including the deceased child who was six years old, climbed upon the truck of the defendant and were on its right side in plain view of the defendant's servants as they returned to the parked truck, "drove" these children "who were clinging and climbing upon" the truck "off of" the truck, and "immediately entered the cab" of the truck, and without warning "started the same suddenly in motion," driving off; that these servants so started the truck "without investigation to see whether or not" these children, including the plaintiff's child, "who had remained in close proximity to said truck," were upon the left side thereof or "hanging or climbing thereon or thereto, or in close proximity thereto;" that these servants "knew or in the exercise of ordinary care should have known" that the plaintiff's son and the other children "of tender years, acting upon a childish impulse and in accordance with practice," of which it was previously alleged that these servants knew, "would renew their attempt to get upon" the truck, and that any such child so upon the truck would be subjected to danger and peril when the truck was started, although the child would not be aware thereof; that the plaintiff's son, after being driven from the right side of the truck, immediately ran to the left side and climbed upon the bottom rung of the ladder at the rear of the cab, and was in such position when the truck suddenly started off; and that the position of peril of this child "was plainly apparent" to the defendant's servants, "and could readily and easily have been seen by defendant's said servants and agents merely by turning their heads and looking through the rear window of the cab," which they failed to do, and failed to take any precautions to ascertain that no child was upon the truck. The petition charged that the defendant's servants failed to exercise ordinary care in the premises, and that had they done so they would have discovered the perilous position of the plaintiff's child upon the truck before it was suddenly, without warning, put in motion and driven down the street, resulting in the death of the plaintiff's son by being thrown from the truck when it "suddenly, sharply, and violently turned from the street into an intersecting street."

In Ziehm v. Vale, 98 Ohio St. 306 (120 N.E. 702, 1 A.L.R. 1381), a child four and a half years of age, together with two or three other small boys, was playing upon the right running-board of the defendant's car which was parked near the curb. It appeared that when the defendant returned to his car these children asked to be given a ride; that the defendant refused this, and drove them away from the car; that he proceeded to crank his car, and when he got in to start the car he saw that the child had remained upon the running-board; that the defendant "shooed him away with his cap," and the child "left the car for a short distance;" and that the defendant "did not know the child was on the running-board when the car started." It appeared that when the defendant drove the child away the second time he remained in close proximity to the car and got back upon the running-board on the side out of view of the defendant. The defendant requested the court to charge the jury that he would not be liable unless he actually knew that the child was on the running-board at the time he started the car or while he was running the car forward. He also requested a charge predicated on the principle that after driving the child away from the car no further duty devolved on the defendant, and that no obligation rested on him to see that the child remained away. The trial court refused to apply the principle of non-liability as requested, but imposed upon the defendant the duty to use ordinary care "if the circumstances would apprise the defendant, as an ordinarily prudent man, that a child of four and one-half years, acting under childish impulses, would renew his attempt to get upon the running-board of the automobile." A judgment in favor of the plaintiff was rendered and the Court of Appeals of Ohio reversed that judgment, holding that "when the plaintiff left the street for the purpose of travel and got upon the defendant's automobile without invitation, he was not rightfully there." The Supreme Court of Ohio reversed the ruling of the Court of Appeals, and held that the defendant was liable if he saw and knew that the child was on the running-board or "by the exercise of ordinary care would have seen that said plaintiff was on the running-board of said car." "Where the owner of an automobile, upon returning to his car, finds an infant four and a half years of age thereon, and twice drives the infant from the car, the owner is not thereby absolved from further duty towards such infant. Under such circumstances, when the child still remains in close proximity to the car, the driver is required to exercise reasonable care to avoid injury to the child." LaRose v. Shaughnessy Ice Co., 197 App. Div. 821189 N. Y. Supp. 562, in reversing a judgment of nonsuit the court held that "a minor ten years of age, permitted to climb on a motor truck by the driver thereof, was not subject to the treatment of a mere trespasser, and the owner of the truck owed him a higher duty than to merely refrain from doing him a wanton injury."

The principles underlying the decision of this court in Madden v. Mitchell Automobile Co., 21 Ga. App. 108 (94 S.E. 92, 1 A.L.R. 1386), are identical with those involved in the present case. While the facts are not exactly parallel, yet the decision in that case is authority for the ruling of the judge in overruling the general demurrer to the petition in the present case. The Madden case is referred to by the annotator in 1 A.L.R. 1386, on the question of liability for an injury to a child playing upon or in proximity to an automobile, where the driver of the automobile was in the position to be aware of the presence of such child. The law on the subject of the care which the operator of an automobile is obliged to take to avoid injuring children is laid down in 2 Blashfield's Cyc. Auto. Law, § 1510, and in 1 Berry on Automobiles (6th ed.) § 519. "The degree of care to be observed depends, of course, upon the age of the child. The rule is that children must be expected to act upon childish instincts and impulses, and not to exercise the discretion and prudence necessary for their safety, with regard to dangerous agencies. . . It is not possible to lay down a rule for measuring the degree of care that a motorist owes to children, according to age, and the varying circumstances in which motorists come in close proximity to children. . . The doctrine that is applicable to this case is that when a truck-driver sees that children have climbed upon his truck while it is stopped, and knows that they intend to ride on the truck, he must not only put them off, before starting his engine, but must exercise reasonable care to see that they stay off. The younger the children are, and the more persistent they are, the more determined the truck-driver ought to be to avoid injuring them." See Llorens v. McCann, 187 La. 642, 656 (175 So. 442), citing 3 Am. Jur. 639, § 246. Under the facts alleged in the petition it was a question for the jury whether or not the servants of the defendant, had they exercised due care, would have discovered the presence of the plaintiff's child upon the left side of the truck; and it was likewise a question for the jury whether or not, in the circumstances narrated above, these servants should have anticipated that the plaintiff's child would act as he did, after being driven from the right side of the truck, run around it, and climb back on the truck on the other side. It was alleged that these servants started the truck, after driving the children from the right side thereof, without investigation to see whether or not these children or any of them (who it is alleged had remained in close proximity to the truck) were on the left side of the truck. Under the rulings and the principles stated above, the petition set forth a cause of action.

Judgment affirmed. Stephens, P. J., and Felton, J.,concur.