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Action for damages. Tift Superior Court. Before Judge Gray.
FELTON, Chief Judge.
The court did not err in overruling the defendant's amended motion for a new trial and his motion for a judgment notwithstanding the verdict.
Mrs. Jean Yarbrough sued Max Oscar Grayson to recover damages for the alleged tortious death of her three-year-old son. The petition, as amended, alleged that the defendant's automobile struck the child while the defendant was operating the vehicle within the city limits of Tifton, Georgia, while proceeding south between the intersecting streets of Seventh and Eleventh. The petition further alleged that the injury occurred in a residential district where a large number of families lived; that the defendant was familiar with the area of South Ridge Avenue between the intersecting streets of West Seventh Street and The Old Omega Road, upon which is located Owens Trailer Park, where the defendant resided, the defendant having traveled said South Ridge Avenue at least ninety (90) times while he was a resident of Tifton, Georgia; that at the corner of Eleventh Street and South Ridge Avenue, an intersection between West Seventh Street and the Old Omega Road, said point being approximately 500 feet south on South Ridge Avenue from the Yarbrough residence a playground maintained for children under twelve (12) years of age and that signs are erected notifying the general public that children of tender years are in the area, and that the signs are sufficiently legible to be seen by an ordinarily observant person, said signs reading "Playground for children twelve years and under"; that the place where the collision between the defendant's automobile and John Mark Yarbrough occurred, was in a thickly populated residential district and within 500 feet of a designated playground for children twelve years old and under, and thus the area was and is a place where the defendant knew, or should have known, that children of tender years become pedestrians on the streets; that John Mark Yarbrough, while playing with the toy rubber football, kicked the said football, causing it to bounce into the south traffic lane of South Ridge Avenue and after four or five seconds, said John Mark Yarbrough followed the football out into the street and thereupon became a pedestrian; that said child picked up the toy rubber football, which was at the time lying in the southbound traffic lane of South Ridge Avenue; that he took two steps in a southwesterly direction and dropped the toy football and stooped and picked it up, at this time being approximately 456 feet south of West Seventh Street, whereupon the defendant violently and negligently drove his car into and against the back and head of said child and ran over him with great force and violence, thereby severely injuring him. The petition alleged the following specifications of negligence: "(a) In failing to grant the right of way to a pedestrian who was then and there upon the roadway, and whose presence was, or should have been, apparent to the defendant; (b) In operating his vehicle at a speed in excess of what a reasonable and prudent person would operate a vehicle under like conditions and circumstances; (c) In failing to use due care in the operation of the defendant's vehicle to prevent injury to persons legally upon the public streets of Tifton, Georgia; (d) In failing to keep a careful watch to see that defendant's automobile did not cause injury to children of tender years playing in a residential area; (e) Failure to keep his automobile under control so as to prevent injury in the operation thereof; (f) Failure to operate his car in a slow, careful and prudent manner, when a special hazard existed with respect to pedestrians in violation of Section 48 (c) of the Traffic ordinance of the City of Tifton, the same constituting negligence per se, or negligence as a matter of law; (g) In operating his vehicle at a fast and excessive rate of speed under the conditions and circumstances as they existed on the day hereinbefore set out; (h) In failing to give John Mark Yarbrough time to safely get out of the path of the defendant's vehicle; (i) In failing to slow his vehicle down and, if need be, stopping the same to yield the right of way to John Mark Yarbrough, a pedestrian who had already entered and was practically across the lane of traffic in which defendant was traveling before he came upon said John Mark Yarbrough; (j) In failing to keep a lookout ahead to observe pedestrians who might be in the street, in a thickly
populated residential district where he should have anticipated that a pedestrian might be running into the street; (k) In failing to keep a lookout ahead and observing John Mark Yarbrough in the street and so controlling the speed and course of his vehicle as to avoid colliding with the child; (l) In failing to keep his vehicle under control as that he could bring the same to a stop before striking John Mark Yarbrough when he observed said child, or in the exercise of due care and caution should have observed said child in the street as a pedestrian; (m) Failing to sound the horn of his automobile and thus give warning to John Mark Yarbrough of his approach and afford the child an opportunity to run or leap from the paved portion of the street and path of defendant's vehicle."
There were various demurrers to the petition and amendments thereto, to meet the demurrers. After the amendments, the demurrers of the defendant were not renewed. Tile defendant answered, denying liability and pleaded that the injury was caused solely by accident and that the negligence of the plaintiff in permitting said child to be in the street was the sole proximate cause of his death. The jury found for the plaintiff and the defendant excepts to. the overruling of his motion for a new trial on the general grounds and two special grounds, and the overruling of his motion for a judgment notwithstanding the verdict.
1. The evidence did not demand a verdict for the defendant either on the theory (a) that the defendant was not shown to be negligent, or (b) on the theory that the alleged negligence of the plaintiff in permitting the child to be in the street barred her recovery.
(A) The jury was authorized to find that the defendant was negligent in running into or over the child. The evidence authorized the finding that the deceased child, three years old and incapable of being negligent, kicked an inflated football into the street; that a few seconds thereafter the child followed the ball into the street, picked it up, dropped it, picked it up again and was immediately hit by the defendant's automobile. The defendant testified that be was traveling at about 20 miles per hour. The above evidence authorized the jury to find that the defendant saw, or should have seen the football in the street and that he in the exercise of ordinary care could have avoided hitting the child on the theory that enough time had elapsed between the time the football landed in the street and the child had picked it up, dropped it and picked it up again, for the defendant to stop or turn his automobile so as to avoid hitting the child. The defendant does not contend that the mother's negligence barred her but his failure to do so would not militate against him if she in law is barred. Under the last-clear-chance doctrine she is not barred, assuming that under other circumstances she would be barred from recovering damages for the death of a child who was in a place of danger by reason of her negligence. See A. & C. Air-Line Ry. Co. v. Gravitt, 93 Ga. 369 (20 S. E. 550, 26 L. R. A. 553, 44 Am. St. Rep. 145). The doctrine of last clear chance is applicable in Georgia to both plaintiff and defendant--to the plaintiff by statute. Bennett Drug Stores, Inc. v. Mosley, 67 Ga. App. 347 (20 S. E. 2d 208); Lovett v. Sandersville R. Co., 72 Ga. App. 692 (34 S. E. 2d 664); Crapps v. Mangham, 75 Ga. App. 563 (44 S. E. 2d 133); Casteel v. Anderson, 89 Ga. App. 68 (78 S. E. 2d 831); Southland Butane Gas Co. v. Blackwell, 91 Ga. App. 277 (85 S. E. 2d 542), reversed on another ground, 211 Ga. 665 (88 S. E. 2d 6); Atlantic Coast Line R. Co. v. Grimes, 99 Ga. App. 774 (109 S. E. 890); 59 A. L. R. 2d 1265-6. Statements to the contrary of the applicability of the doctrine of last clear chance to a defendant in Smith v. American Oil Co., 77 Ga. App. 463 (49 S. E. 2d 90) must yield to older Court of Appeals cases and the Blackwell case, supra, in which the doctrine was recognized by the Supreme Court. A number of Law Review articles also have incorrectly stated the existing law in Georgia by following the statements in the American Oil Co. case. The defendant contends that the testimony of the defendant conclusively shows that he was not negligent because no witness contradicted his testimony. This contention is not meritorious because if the facts already stated were believed by the jury to have occurred, the defendant could have seen the child before he ran into him. Direct testimony may be disproved by circumstances inconsistent with it. The defendant also contends that, since the testimony
of the deceased child's seven-year-old brother was so contradictory, vague and equivocal, a verdict for the defendant was demanded. This contention does not apply to a mere witness for a party. It does apply to a party and a principal witness for a corporation and possibly in other situations, but no authority is cited for the proposition contended for by the defendant. The child's testimony was contradictory on the question whether he actually saw the automobile strike the plaintiff, but even if he did not, the jury could find from what he did testify that the ball went into the street, his three-year-old brother went after it, picked it up, dropped it, picked it up again and was hit. The defendant admitted hitting and killing the child, but contended that he did not see the child until after it was hit and that the child ran suddenly in front of the car or into the side of it. The child witness was sought to be impeached as to other matters but his credibility was for the jury. See Code Ann. 38-1803, catchword "Jury". "The rule is well established that the jury may believe a witness, not a party to the case, though his testimony is equivocal and contradictory." Consolidated Telephone Co. v. Kincaid, 94 Ga. App. 823, 826 (96 S. E. 2d 322).
2. The fourth ground of the amended motion for a new trial complains that the court erred in not charging Code Ann. 68-1626 (b) 1, which in effect provides that unless otherwise established by law the speed of automobiles where no special hazards exist shall in a business or residence district be not in excess of 35 miles per hour. Without a request to so charge the failure to charge was not error. There was no charge of negligence per se except that provided by Code Ann. 68-1626, and while a violation of this section has been called negligence per se, it cannot be denied or refuted that to find it to be negligence per se a finding of common-law negligence must first be made. The plaintiff simply charged the defendant, not with driving over 35 miles per hour, but with driving too fast for the conditions existing at the time and place involved.
The court did not err in overruling the general and two special grounds of the defendant's motion for a new trial or in overruling his motion for a judgment notwithstanding the verdict.
Judgments affirmed. Nichols and Bell, JJ., concur.
G. Gerald Kunes, contra.
Seymour S. Owens, for plaintiff in error.
Friday May 22 23:30 EDT

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