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EASON v. CREWS, by next friend.
34596.
Damages. Before Judge Boykin. Carroll Superior Court. February 7, 1953.
GARDNER, P. J.
1. An operator of a bus transporting children to and from school is a common carrier. His duty is to exercise extraordinary care for the safety of the passengers. Where, as here, the evidence authorizes the jury to find that the operator did not, under all the facts and circumstances revealed by the evidence, exercise such degree of care as the law imposed, such operator becomes responsible in damages for the injuries received by the passengers. 2-4. The assignments of error in the three special grounds show no reversible error for the reasons stated in the body of the opinion.
5. The court did not err in overruling the demurrers to the petition.
Bobby Crews, by Thomas G. Crews, as next friend (hereinafter called the plaintiff), sued D. B. Eason (hereinafter called the defendant), in Carroll Superior Court for damages for personal injuries. The original petition, in substance and insofar as material, alleged the following: The defendant, who is a resident of Carroll County, has injured and damaged the plaintiff in the sum of $97,540 by reason of these facts: The plaintiff is twelve years of age and attends Hulett Grammar School in Carroll County. The defendant drives a school bus on the Whitesburg-Sand Hill route in said county; during the school year 1950-1951 the plaintiff rode to and from school every school day in the defendant's bus. On April 23, 1951, about 3 o'clock p. m., the plaintiff was riding from school to his home on the defendant's bus, which was driven by the defendant along a road in said county that connects and runs between Littlevine Road and Whitesburg Road. It was further alleged that the day was warm, and the bus being filled with school children, the windows of the defendant's bus were open. When said bus, with the defendant as driver, reached a point about four miles from the plaintiff's home, it was driven at a speed of about 30 miles an hour into and against the limbs of a tree on the right hand side of said road. As said bus continued, a limb of said tree protruded into the window of said bus striking the plaintiff violently and with great force in the right eye, causing severe pain and suffering to the plaintiff; and the plaintiff received the following injuries: (a) almost complete loss of his right eye; (b) severe discoloration of the plaintiff's right eye and discoloration of tissue surrounding said right eye causing the plaintiff's facial features to be distorted and unpleasant; (c) severe and constant headache since the time of said accident; (d) disturbance of muscular control causing the plaintiff to continually twitch and bat his said right eye; (e) other external and internal injuries which, at the time of the filing of this action, are unknown. The road where the accident occurred is straight, and the defendant saw, or by the use of ordinary diligence could have seen, the trees on the side of the road for a distance of at least 250 feet from the point at which the collision occurred. The defendant from experience knew or should have known that this road had trees growing immediately at the edge of said road and the defendant should have known that, if he hit or brushed against said trees without slackening his speed, there was danger to the occupants of the defendant's bus from limbs of said trees hitting against said bus and protruding into and against the passengers in said bus. Because of the speed at which the defendant was driving and the suddenness with which said limb protruded into said bus, the plaintiff was unable to shield his face or avoid the said limb. The road at said point of collision has a width of fifteen feet. The width of the defendant's bus is approximately seven feet nine inches. Since the time of the collision the injuries which the plaintiff received caused him to run a high fever for several weeks and to remain sick at his stomach and suffer constantly from severe and painful headaches that make it impossible for him to properly concentrate on his school work or any other task he attempts. Because of said collision the plaintiff suffered great shock and has continued and will continue to suffer throughout his life great and excruciating pain and suffering. Because of said collision and the injuries which the plaintiff received therein, he has been rendered almost totally and permanently disabled from following any vocation requiring the use of his eyes, either now or at anytime during his expectancy. Because of his total and permanent disability occasioned by loss of his eye, the plaintiff's earning capacity has been almost completely destroyed for the balance of his life, and plaintiff has a life expectancy of 47.27 years according to Carlisle's Mortality Table, of which 36.27 years are after the plaintiff reaches the age of majority, so that the plaintiff is entitled
to recover of the defendant $72,540 for his reduced earning capacity, the same being $2,000 for each of the 36.27 years after the plaintiff reaches the age of majority. By reason of the injuries to the plaintiff as aforesaid, the plaintiff has suffered and continues to suffer great bodily pain and anguish and great mental pain and anguish and will continue so to suffer for the balance of his life, and this suit is brought for past, present and future pain and suffering in the sum of $25,000. All of the aforesaid injuries and damages were directly and proximately caused by the following acts of negligence on the part of the defendant in driving his bus as aforesaid into and against the limbs, to wit: (a) driving said bus into and against said limbs; (b) failing to slacken his speed when hitting said limbs. The plaintiff shows that said injuries were due in no wise to any negligence on his part, but were due wholly to the negligence on the part of the defendant. The prayers were for process and judgment.
The defendant filed a general demurrer to the petition on these grounds: No cause of action is set out; the facts alleged are insufficient to authorize the court to grant the relief prayed and there are not sufficient facts alleged in the petition to legally justify, authorize, or permit the court to render a verdict of any kind against the defendant.
The defendant also filed special demurrers as follows: To paragraph 9, subparagraph (e) of the petition--"Other external and internal injuries, which at the time of the filing of this action are unknown" on the ground that the same is a mere conclusion without facts to base the same upon, too vague, uncertain and wanting in particularity as to what they are. To the language in the third line of paragraph 11 of the petition, "if he hit or brushed," on the ground that the same is in the alternative, and the plaintiff should elect which or make a specific allegation.
Thereafter the plaintiff filed an amendment, which was allowed, subject to demurrer, and ordered filed. Said amendment alleged substantially the following: That the petition was amended by striking the word "almost" in paragraph 9, subparagraph (a), so as to read after amendment, "Complete loss of sight of plaintiff's right eye"; by striking subparagraph (e) from paragraph 9 of the petition, by striking paragraph 11 and inserting in lieu thereof the following: "That defendant knew or should have known that this road had trees growing immediately at the edge of said road, being on the right-hand side of said road as the bus was traveling and knew or should have known that if the bus was traveling into the protruding limbs of the tree that the same would brush against the right side of the bus, protrude into the windows, and strike the passengers therein"; and by adding paragraph 11 (a) as follows: "Defendant knew or should have known that in striking said limb the faster the bus was traveling the more force the limbs would have as they protruded into the open windows of the bus and striking the passengers therein."
After the allowance of said amendment, subject to demurrer, the defendant, in writing, renewed his general and special demurrers to the petition as amended, insisting on each and every ground.
The court overruled the general and special demurrers to the petition and to the petition as amended. To said order overruling the said demurrers the defendant timely presented his exceptions pendente lite, which were signed by the court and filed as a part of the record.
Thereafter the plaintiff amended his petition by adding to paragraph 19 subsections as follows: (c) driving said bus into and against said limbs with bus windows open when the said bus was loaded with school children; (d) failing to observe road ahead so that bus could avoid contact with the limbs of said trees; (e) failing to observe road ahead and failing to warn occupants of bus before bus hit said limbs; (f) failing to have any protective devices on windows of bus that would prevent limbs from protruding into bus; (g) failing to have stops on windows that would prevent the windows of said bus from being lowered below the level of occupants' heads; (h) failing to steer the said bus in said road so that bus would not hit said trees.
To said amendment to the petition the defendant demurred on these grounds: same are mere conclusions without facts upon which to base them; subsection (c) is insufficient in not setting out how defendant drove the bus into or against the limbs, in not setting out who opened the windows or when and where; to the language in subsection (d) "failing to observe the road ahead," being insufficient in not setting out how, when, or in what manner he could have avoided contact with the limbs: to subsection (e) because it does not set out in what manner, when, or in what way the defendant failed to observe, failed to warn, or particularly where the limbs were; to subsection (f) as a mere conclusion, wanting in particularity; and to subsections (g) and (h) for the same reasons.
On the trial before a jury, the plaintiff, Bobby Crews, as a witness in his own behalf, on direct examination testified substantially as follows: On April 23, 1951, when the plaintiff was 12 years of age and attending Hulett School in the 6th grade, he was riding from the school to his home in a bus driven by the defendant. The bus was going about 30 miles an hour. The plaintiff was sitting in the third seat, up against the window of the bus, and reading a comic book; the defendant was driving on the right-hand side of the road, with reference to the center of the road. The road is about 16 or 17 feet wide. Before reaching his home the plaintiff was struck in the eye by a limb of a bush. As a result of the blow the plaintiff had a headache, couldn't hold anything on his stomach and he had a fever. The accident happened on Monday, causing him to stay at home. On Thursday of that week the plaintiff went to Carrollton to see Dr. Reese, who called in Dr. Hallem, of Atlanta, and the defendant was sent to the hospital. They operated on the eye Sunday night following that date of the accident. The loss of sight in the eye began on the day he went to the hospital. At the time of the trial the plaintiff couldn't see anything out of the injured eye, except a shadow. The eye gave him pain and headache. At the time of the accident the windows of the bus were down, that is, lowered from the top. When the plaintiff got off the bus the afternoon of the injury the defendant knew about it and put some medicine in the injured eye. At the point where the accident took place, the road is straight for a distance of 250 feet. The defendant did not call back to the plaintiff that a limb was liable to strike, or give any warning or notice. The witness didn't know whether the defendant drove his bus against and into the bushes or not. The defendant had driven on the road previously to that day and had opportunity to know the road. Limbs had previously struck that bus before that day. Photographs of the bus were identified by the witness. On cross-examination the plaintiff, in brief, testified: The defendant had driven the bus for about five years and during that time plaintiff had ridden on it. The plaintiff knew that there were bushes on the side of the road. The defendant was driving at a very careful speed all the time on this date. The defendant was exercising all the care and caution that he could take. The windows raise up and down. The defendant cautioned the plaintiff from time to time about raising and lowering the windows and about keeping them open.
Dr. D. S. Reese, on direct examination, after qualifying as a physician, testified for the plaintiff substantially as follows: His practice is at Carrollton and limited to eye, ear, nose and throat. Bobby Crews first came to see him on April 26, 1951, at the office. He had an injury to the right eye, with considerable loss of vision and he had recently had a hemorrhage. His vision at the time was 20/500, which in common parlance means he can see very poorly. Bobby came back to the office the next day and at that time he was sent to the hospital in Carrollton. An operation at that time was questionable. The eye was worse on the next day after the first visit. On Sunday an operation was performed on the eye by Dr. Hallem. He opened up blood clots in the eye and washed out the blood in front. A blow could cause blood to be in the eye. The first day Bobby came he was suffering pain and the next day the pain was much worse. It was excruciating, severe. He had to give him drugs to ease the pain. Bobby was treated for several days. As to the condition of that eye now, he is blind in it. He can distinguish a light such as a flashlight if it is flashed directly in front of his eye. He could not tell whether you are a man or woman or white or colored person. Sometimes the loss of an eye will affect the optic nerve and travel back where it will destroy the vision of the other eye. It is possible in this case. The disability, in the opinion of this witness, is 25 to 40 percent. He will never recover the sight of that eye. On cross-examination this witness, in effect, testified: The cornea wasn't damaged. The damage was inside the eye. It wasn't washed out until Sunday night after coming into his care on Thursday. The witness didn't know what pain Bobby suffered except from watching him and from Bobby telling him. Because a man has lost his eye he would not necessarily lose the other eye. The loss of one eye will affect the other's sight sometimes. In this case we are watching him to see. The witness did not mean to swear that Bobby is going to lose the other eye.
Geneva Bass, on direct examination, testified for the plaintiff in substance: She had been acquainted with Bobby Crews since 1948. They rode the same bus. On April 23, 1951, she was sitting on the front seat just ahead of Bobby in the school bus being driven by Mr. Eason. Bobby was reading a comic book. The bus was going down grade at the big tree. The limbs had been coming in the windows of the bus. She dodged the limb to keep it from hitting her. The limbs swept the bus. There wasn't anything in the road except Mr. Eason's school bus. He was not meeting any car. At the time the limbs came into the window Mr. Eason was on the right-hand side of the road going the way he was driving. He could have driven in the middle of the road. If he had driven in the middle of the road he wouldn't have hit the limbs, she believed. The limbs extended out into the road. When she got off the bus about a hundred yards from where the thing happened no one had then reported the matter to Mr. Eason. Bobby was then crying. There was not anything to prevent Mr. Eason from seeing the limbs. He did not call back or warn that he was fixing to drive past some limbs. There were no protective devices on the windows of the school bus that would prevent the limb from entering, no more than windows. They had been let down when they left Villa Rica. On cross-examination this witness, in brief, testified: Sometimes the windows are up and sometimes they are down when the children get in the bus. The pupils raise or lower them at their pleasure. Mr. Eason never in her presence cautioned about lowering the windows. The accident happened in Carroll County. At that time Mr. Eason was driving about 25 miles per hour. Right at this point Mr. Eason was in a curve going towards the house of the witness and the trees here extended over the highway. The witness knew the trees were there. They had hit the bus before. So far as the witness knew, Mr. Eason was a careful driver. This witness identified some photographs for the plaintiff's evidence.
Betty Ann Braswell, on direct examination, testified for the plaintiff substantially as follows: She was 16 years of age and in the 10th grade at school. On account of a polio condition she was in the front seat of the school bus the day Bobby Crews was hit in the eye with the limb. She was sitting on the left side. She did not see the limb come into the bus. She saw Bobby grab his eye and start crying. At the time the limb hit him in the eye he was reading a comic book. On cross-examination this witness, in substance, testified: She had to use a rolling chair on account of her polio condition. The chair had to be lifted on and off the bus and she had been riding with Mr. D. B. Eason all the time he had been driving the bus until the last term before the trial. During all that time Mr. Eason had lifted her on and off the bus. She got on the bus at Villa Rica in the afternoon and came by the Hulett School where the grammar school children are picked up. They came down this very narrow dirt road, which was down hill with a curve to the left and the accident happened right in the curve. She had known those limbs were across the highway, that is, right on the edge of the highway and extended over into the road. Mr. Eason had cautioned all riding the bus about keeping the windows open and letting things hit the window and blow in the window to try to take care of the children. He had told them to keep the windows up and not to lower them. If he lowered them it was just a little place at the top where nothing would blow and hit them. Sitting on the bus seat, the window could be lowered down to where her head and shoulder could stick out. The students on the bus opened and lowered the windows at their pleasure. At the immediate time the accident happened no one told Mr. Eason about it. She would think Mr. Eason was driving his bus right in the road at that time. On redirect and recross-examination this witness stated that at the curve where the accident happened Mr. Eason was driving to the left. Bobby was sitting on the right side of the bus.
T. G. Crews, the father and next friend of the plaintiff, testified as follows: He brought the suit as next friend. He measured the width of the road where the accident happened and it is 15 feet at the base of the road.
Mrs. Gladys Crews, on direct examination, testified for the plaintiff in brief: Bobby Crews is her son. On April 23, 1951, the bus stopped a longer time than usual near the house. She came to where the bus stopped. Mr. Eason was doctoring Bobby's eye. She asked Mr. Eason if Bobby had his head out of the window and he said "No." On asking Mr. Eason what the trouble was, he said a limb had hit Bobby in the eye. Bobby had to stay out of school and at home. He cried all day and night. He couldn't sleep. She carried Bobby to the doctor Thursday. Dr. Reese asked her to bring Bobby back the next day also and on Friday morning Bobby was carried to the hospital. Dr. Hallem operated on Bobby's eye Sunday night. He was kept in the hospital ten days. After getting home Bobby stayed in bed about a week. He did not go back to school that term. In September he started back to school. He plays some, but not as much as he formerly did. Bobby didn't make as good a grade as he did before. He made excellent grades before the accident. He makes "S" and "P". On cross-examination this witness testified: that she didn't know anything about what grades except from information she derived from his teacher, and his report card. Mr. Eason was the only driver of the bus. For the plaintiff this witness identified several photographs.
D. B. Eason, the defendant, on direct examination testified substantially as follows: He had been driving this route about seven years. He described the route he followed. Defendant had told the children in Bobby Crews' presence that he cautioned them about lowering and raising the windows and keeping their heads out. After he got to Villa Rica the windows were closed as a usual thing, but in the afternoon they were lowered by the school children. The defendant did not lower the windows himself. On the day of the injury to Bobby's eye the defendant didn't know about it at the immediate time it happened but learned of it a stop or two away. The defendant did not drive his bus directly into a limb. He was driving approximately 25 to 30 miles per hour. He did not see the limbs hit anybody in the eye or hit his bus. At the time of this occurrence he was observing the road ahead, keeping a lookout. He was driving down the road as usual. When he learned of the injury he tried to see if there was anything he could do. He carries a first aid kit and used some merthiolate on Bobby's nose where the skin was grained. On cross-examination the defendant testified, in substance, as follows: That he was driving a bus on April 23, 1951, on which Bobby Crews was riding at the time he received an injury. His bus is approximately 71/2 feet wide; that he left Villa Rica with the windows down. The school children lowered them. He did not make an effort to raise them. He was driving about 25 or 30 miles an hour when this thing happened. He was looking down the road. He might not having seen this particular limb. He drove down a road with those windows open by bushes that were striking his bus. There were ruts in the road there, in the middle of the road. He didn't drive around them. He was probably straddling one. On being shown a photograph he testified that the streaks shown were made by limbs hitting his bus. The trees were on the right side of the road, near the bank of the road. On re-direct examination the witness stated that the streaks on the bus were made on a narrow road in Douglas County.
The above statement of facts submitted by the defendant is concurred in substantially by the plaintiff, with exceptions which we think should also be stated herein: First, the plaintiff testified: "At the time the limb struck me in the eye, there was nothing else in the way of traffic going or coming toward that road. Mr. Eason was not meeting anyone or facing anyone."
Second, the defendant testified: "I did see the limbs. Then using my knowledge of distance and applying it to the limbs, I think they stuck over, say approximately a yard. They stuck over in the road a yard approximately. The road was fifteen feet wide approximately. My bus is seven and one-half feet wide. I suppose that gave me twelve feet to drive a seven and one-half foot bus through without striking that limb. I was not meeting anyone.
Third, the plaintiff testified: "I did not lower any windows in that bus."
Fourth, the defendant testified: "Before I left Villa Rica, I did not walk through my bus. After I left Villa Rica, I did not get out of my driver's seat and walk back through my bus. I do not know whether any windows were down when I left Villa Rica. They were down. I left there with them down."
Both parties thus concur that the above statement of facts is substantially correct. The amended motion for new trial was denied. The assignments of error in the bill of exceptions are: First, on the exceptions pendente lite; and second, on the judgment denying the motion for new trial as amended. Therefore, the questions to be decided are: Did the petition as amended set out a cause of action? And did the court err in denying the amended motion for new trial? We will take these questions up in reverse order.
The defendant contends that the incident was a pure accident; that the petition does not allege that the defendant had driven his bus outside the roadway provided for travel by the public for motor vehicles; that no duty rested on the defendant to keep lands along the side of the roadway clear of limbs; and that such a duty is upon the county authorities, if upon anyone. The defendant cites in this connection Chambers v. Whelen, 44 Fed. 2d 340, and also calls to our attention McCrory Stores Corp. v. Ahern, 65 Ga. App. 334, 336 (15 S. E. 2d 797). Upon reading the McCrory case, under its facts, there is little if any similarity between that case and the instant one. We think that the instant case is based upon a different principle of law from the McCrory case. Carriers must exercise extraordinary diligence to protect the lives and persons of their passengers, but are not liable for injuries to them after having used such diligence. Code 18-204. School bus operators are carriers of passengers and are required to exercise extraordinary care for the safety of school children riding on their buses. Sheffield v. Lovering, 51 Ga. App. 353 (180 S. E. 523). To the same effect see Roberts v. Baker, 57 Ga. App. 733 (196 S. E. 104).
When a passenger is injured, a legal presumption that the carrier failed to exercise extraordinary care arises in his favor. The carrier can, of course, rebut this presumption by making it appear that extraordinary care and diligence were exercised. This is a jury question. Georgia Ry. &c. Co. v. Murphy, 28 Ga. App. 173 (110 S. E. 680). See also, in this connection, East Tennessee &c. Ry. Co. v. Miller, 95 Ga. 738 (22 S. E. 660). We might here also take note of the principal of law held in Martin v. Waltman, 82 Ga. App. 375, 383 (61 S. E. 2d 214), that, when in the exercise of care by the operator of a motor vehicle, danger becomes discoverable and is caused by the negligence of another, the operator has the duty to avoid the consequences of the other's negligence.
In this connection, insofar as the evidence reveals, the defendant knew that the limbs were there; at the point where the plaintiff was struck by the limb, the operator had ample opportunity to turn his vehicle to the left of the highway and avoid the limb protruding toward the right-hand side of the bus in the direction in which the bus was traveling; again, the driver could have reduced the speed of his bus, according to the evidence, so that the limb would not have protruded into the open window with such violence as to injure the plaintiff's eye. All of these questions of fact and others therewith are for the jury to decide. The jury resolved them against the defendant, and we have no hesitancy in reaching the conclusion that the verdict was supported by the pleadings, the evidence, and the law applicable thereto. The assignments of error on the general grounds are without merit.
2. Special ground 1 assigns error upon the admission of evidence over the objection of the plaintiff. The evidence is that of the attending physician. "The boy was suffering pain when he first came to me. The next day the pain was much worse. It was excruciating, severe." The objections to the evidence were: (a) That on cross-examination the physician testified: "I do not know what pain he suffered except from watching him, and from his telling me [himself] and the parents told me." (b) That the opposite party offered the evidence objected to. (c) That the court refused to exclude the evidence. (d) That the evidence was material, prejudicial, and hurtful, in that (1) it was hearsay, (2) it unduly influenced the jury in favor of the plaintiff, and against the defendant. (e) Inadmissibility of the evidence was beyond doubt.
Counsel for the defendant contend in the argument that the evidence could not be admitted, over objection, without violating the rule against hearsay, "especially where the plaintiff himself fully described the character and extent of his injuries," citing Goodwyn v. Central of Ga. Ry. Co., 2 Ga. App 470 (58 S. E. 688). We do not think that the ruling under the facts of the Goodwyn case is applicable under the facts of this case. It is not in all cases that statements of complaints made to a physician are admissible. Atlanta, Knoxville &c. Ry. Co. v. Gardner, 122 Ga. 82 (11) (49 S. E. 818). The ground herein stated is too incomplete for the court to make a decision on it. The record reveals, on page 34, that the court refused to admit in evidence the statement of the boy to the attending physician, what the boy said as to his pain and suffering, and what the parents said. This is what the record reveals: "Mr. Boykin [attorney for the defendant] : I move to exclude the doctor's testimony that he suffered severe and excruciating pain. He said he did not know except what the boy told him and what the parents told him." "Mr. Tisinger [attorney for the plaintiff]: He said watching him, your Honor." "The Court: He said watching him. I will let that stay in; what he saw from objective symptoms."
We find no law anywhere that would class the professional opinion of a physician as being hearsay where it is based on a conclusion which is reached by the physician in watching the plaintiff from objective symptoms. This assignment of error is without merit.
3. Special ground 2 assigns error because, in one portion of the testimony of the mother of the plaintiff, on cross-examination she stated to the effect that her son did not make as good grades after the injury as he did before and that she had received this information from teachers and from report cards. While it is true that this assignment of error is to a technical violation of the admissibility of evidence as contained in Code 38-301, bet we cannot see how, in view of all the evidence in this case, such technical violation in the admission of this evidence, under the record, would require a reversal. There is evidence to the effect, when we consider the evidence in its entirety, to authorize the jury to conclude--in view of the son's inability to read and to study and his inability to apply himself, and in view of his constant pain and headaches and nervous twitching--that he would not make as good grades as he did prior to the accident, and before he lost his eyesight.
4. Special ground 3 complains of the following excerpt from the charge of the court: "I charge you, gentlemen, that it is a principle of law 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."
In support of this assignment of error the defendant relies on Fielder v. Davison, 139 Ga. 509 (1) (77 S. E. 618), Code 105-204, and Central R. & Bkg. Co. v. Golden, 93 Ga. 510 (2) (21 S. E. 68). While the authorities called to our attention in the case cited by the defendant state correct abstract principles of law, when we consider all of the facts and the entire charge in connection therewith, no grounds are shown for reversal of this case for the alleged reason that the court erred in using the words "dangerous agencies." This excerpt is contained in the first sentence of the court's charge. We will quote the whole charge on the subject: "I charge you, gentlemen, that it is a principle of law 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. And I charge you further that the exercise of care required of a child differs from the standard of care required of adults. I charge you that the law requires that a child exercise such care only for its own safety as its capacity fits it for exercising in the actual circumstances of the occasion and situation. Thus, if this particular child was negligent and such act was proximate to its own injury, yet if such act was of a character that you would expect of this particular child, then this would not preclude recovery, for the child is required to use only such care as the capacity of this particular child enables him to use under this given situation. The degree or measure of care which the child was required to exercise was that which is ordinarily exercised and which is to be reasonably expected from a child of his years and experience under the circumstances he was in as shown by the evidence, and, before the jury can find him guilty of contributory negligence or lack of due care, you must find that he failed to exercise such care and caution as might reasonably be expected of a child of his years and experience under the circumstances and the burden of proving such lack of due care is upon the defendant. Still that proof may come from either the evidence introduced by the plaintiff or that introduced by the defendant or from the evidence of both. There is no presumption of law either that the child did or did not exercise due care or that the child did or did not have sufficient capacity at the time of the injury to know the danger and to observe due care for his own protection. It is solely within the province of the jury to determine from the evidence whether the child had sufficient capacity at the time of the injury to know the danger and to observe due care for his protection. Now, I charge you, gentlemen, that due care in a child of tender years is such care as its capacity, mental and physical, fits it for exercising in the actual circumstances of the occasion and situation under investigation."
When we consider as a whole all the charge on the question, it presents no error sufficient for reversing the case. It must be kept in mind that the allegations of the petition show (and the evidence supports these allegations) that the bus driver was required under the law to exercise extraordinary care for the protection of the school children; and when the injury was shown by evidence, a prima facie case was made out and the burden of procedure as to evidence shifted to the defendant (not the general burden, which began and remained with the plaintiff throughout the trial) to show that the child in the instant case did not exercise ordinary care for his own safety under all the facts and circumstances of the case, taking into consideration the age of the child, etc., and that the bus operator exercised extraordinary care. Now what was the situation here? The school bus driver was operating a bus loaded with school children; the bus was being driven at approximately thirty miles per hour, with the bus windows open, and the bus was driven into a protruding tree limb with sufficient force for the limb of the tree to put out the eye of a school child, who at the time was engaged in reading a comic book. Under such circumstances, the negligence of the operator of the school bus, in permitting it to come into contact with the limb, we think created dangerous agencies under the facts of this case. We are not unmindful that a motor vehicle is not of and within itself a dangerous instrumentality per se, but that is beside the issue presented by the facts and circumstances of this case under all the pleadings and facts, and the charge of the court as a whole. The assignments of error on this ground show no reversible error.
5. We come next to consider the assignments of error on the exceptions pendente lite. The petition and the general and special demurrers thereto, the demurrers to the petition as amended, and the judgment of the court thereon are set forth somewhat fully. The petition as amended set forth a cause of action so far as the general demurrer was concerned, and the court did not err in overruling the general demurrer, as we think anyone would agree by reading the petition. As to the special demurrers, the petition was amended by the plaintiff to meet them. The errors assigned on the exceptions pendente lite and all other assignments of error are without merit.
The court did not err in overruling the demurrers both general and special, or in overruling the amended motion for a new trial.
Judgment affirmed. Townsend and Carlisle, JJ., concur.
Walter D. Sanders, Clifford A. Cranford, R. D. Tisinger, contra.
Boykin & Boykin, Marshall L. Allison, for plaintiff in error.
DECIDED JULY 16, 1953.
Saturday May 23 04:07 EDT


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