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Action for damages. Fulton Superior Court. Before Judge Moore.
Mrs. Valaria Whiting sued G. A. Easterwood to recover the full value of the life of her two year old son who died as the result of being struck by the defendant's automobile. On the trial of the case the evidence disclosed that both the plaintiff and her husband worked, that the defendant's wife, for two dollars per day, took care of the deceased child while his parents worked that on the day of his death he was being kept by the defendant's wife, that the defendant and his wife had taken him with them, as was their custom, when they made a shopping trip that morning, that during the afternoon the defendant, his wife and fifteen year old daughter had washed the defendant's automobile while it was parked in defendant's front yard and parallel to the front of the house, that after it was washed but before it was dried the defendant sent his daughter into the house for some dry rags and at the same time the defendant's wife went from the front of the house where the automobile was parked around the side of the house to the back yard taking the child with her, that the defendant turned off the water at the faucet, walked around the front of the automobile, got in and after rolling down both front windows and starting the engine and while looking out of the back window backed the automobile approximately one car length and stopped the automobile after having struck the child with the right rear wheel of the automobile, and that the defendant's daughter first saw the child after he had been hit and when she hollered the defendant's wife immediately came from the backyard. The petition charged the defendant with the following acts of negligence: "(a) When the defendant started to back his car, he failed to look to the rear to ascertain that plaintiff's child was not behind his car when he knew or in the exercise of ordinary care should have known that the child was playing in the yard and had toddled behind the car, in violation of the requirements of ordinary care and diligence; (b) In failing to determine that the way behind his car was clear of children before starting to move it in a backwards direction; (c) Defendant failed to keep a proper lookout when moving his car in a backwards direction to determine that plaintiff's son had not toddled into its path, when he knew that the child was playing in the yard, the same being a violation of the requirements of ordinary care and diligence; (d) Defendant failed to anticipate the plaintiff's son, because of his tender years and lack of maturity, might toddle into the path of his car and defendant failed to so control the speed of his car and maintain an alert and vigilant lookout so that he might stop his car to prevent harm, in violation of the requirements of ordinary care and diligence; (e) Defendant did not stop his car after he knew or after, in the exercise of ordinary care, he should have known that plaintiff's child was behind his car, but, to the contrary, defendant drove his car in a backwards direction with great force and violence over the body of plaintiff's son, crushing his chest and causing almost instant death." The jury returned a verdict for the defendant and thereafter the trial court overruled plaintiff's motion for new trial as amended and it is to such judgment adverse to her that the plaintiff now excepts.
1. As to the usual general grounds of the motion for new trial the case is controlled adversely to the plaintiff by the decision in Dixon v. Dixon, 103 Ga. App. 166 (118 SE2d 713). Under the circumstances of the case a jury question was presented as to whether the defendant was negligent. In the Dixon case the question presented was whether the defendant was negligent in assuming that his grandchild was across the street where he had been a minute or so before the tragic moment. Here the real question for the jury was whether the defendant was negligent in assuming that the plaintiff's child was still with the defendant's wife in the backyard where he had been a minute or so before the tragic moment when the defendant moved his automobile.
"The exception that the charge was misleading and confusing which did not point out the reason for either position is not explicit enough. West Lumber Co. v. Schnuck, 85 Ga. App. 385 (69 SE2d 577); Roberts v. State, 88 Ga. App. 767 (77 SE2d 825). The exception (c) that the charge is incorrect and erroneous as an abstract principle of law raises only the question as to whether it is, standing alone, a sound pronouncement of law. Tucker v. State, 25 Ga. App. 196 (1) (102 SE 880); Bankers Health &c. Ins. Co. v. Givens, 43 Ga. App. 43 (157 SE 906); White v. State, 141 Ga. 526 (1a) (81 SE 440). Unless the criticized charge is incorrect on its face, the court is not privileged to peruse the record to learn whether it is adjusted to the issue framed upon the pleading and evidence. Anderson v. Southern Ry. Co., 107 Ga. 500, 501 (4) (33 SE 644)." Mutual Benefit &c. Assn. of Omaha v. Hickman, 100 Ga. App. 348, 363 (111 SE2d 380).
The excerpts from the charge excepted to dealt with the well established principle of law that a plaintiff must recover on the allegations of negligence alleged in the petition, and such charges were correct as abstract principles of law. Under the numerous decisions of this court and the Supreme Court, as exemplified by Anderson v. Southern Ry. Co., 107 Ga. 500 (4 a, b) (33 SE 644), and Hardwick v. Ga. Power Co., 100 Ga. App. 38, 45 (110 SE2d 24), the investigation must end when the determination is made that the charge is abstractly correct and no inquiry can be made to determine if the charge was adjusted to the issues and facts in the case. No reversible error is shown by this ground of the motion for new trial.
3. The sole remaining special ground of the amended motion for new trial assigns error on excerpts of the charge which authorized a verdict for the defendant if the jury determined that the death of the plaintiff's child was an accident.
As shown by the first division of the opinion the evidence did not demand a finding of negligence by the defendant and of course the deceased, a two year old child, could not be negligent. See Red Top Cab Co. v. Cochran, 100 Ga. App. 707 (112 SE2d 229), and citations. There, the charge on accident was authorized, for if the defendant was not negligent, and the plaintiff's deceased child could not be negligent as between the parties, the unfortunate event was an accident in so far as the present action is concerned. The charge was not error. As to the definition of accident see Caldwell v. Knight, 94 Ga. App. 827 (96 SE2d 331), and citations.
The evidence authorized the verdict, and no error of law appearing, the judgment overruling the plaintiff's amended motion for new trial must be affirmed.
Judgment affirmed. Carlisle, P. J., and Eberhardt, J., concur.
Powell, Goldstein, Frazer & Murphy, Edward E. Dorsey, James K. Rankin, contra.
Sheats, Parker & Webb, John Tye Ferguson, for plaintiff in error.
Friday May 22 23:51 EDT

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