The petition set forth a cause of action, and the court did not err in overruling the defendant's general demurrer.
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 *Page 597 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, *Page 598 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 *Page 599 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.