11 S.E.2d 402 | Ga. Ct. App. | 1940
Lead Opinion
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,
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 *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,
The principles underlying the decision of this court in Madden v. Mitchell Automobile Co.,
Judgment affirmed. Stephens, P. J., and Felton, J.,concur.
Dissenting Opinion
Under its facts the case here presented is a novel one in this State. The nearest approach to it is Madden v. Mitchell Automobile Co., supra. There the facts as stated by the court were: that the sight-seeing car by which the plaintiff's son, eleven years of age, was injured "was run from Chattanooga, through Rossville, to Chickamauga National Park, and carried *600 passengers for hire to points of interest along this route; that Burns, the driver, was in entire charge of the operation of the car, and his duties were to collect fares and operate the car; that at a place called the Iowa Monument the driver always checked the speed of his car and delivered a `spiel' to the passengers, explaining this point of interest; that this place was a playground for children, especially for certain boys who congregated here and played ball; that it was the regular custom of these children, when the car `slowed up' at this point, to mount the running-boards of the sight-seeing car which ran lengthwise of the car on both sides, about a foot above the ground; that this custom extended over a period of several years, and was well known to Burns, the driver who was in charge of the car on this occasion. One of the witnesses testified: `It was the habit of us boys to ride when we pleased at this particular place; that had been our habit and custom about two years. Mr. Burns and the other drivers made no objection to our doing that. When I made these trips in these cars we got out there — I did — at the park and opened the gates for them. The driver, Mr. Burns, and the others knew we opened the gates; it was an accommodation to him and the passengers.' The testimony further showed that these boys would ride upon the car to a certain monument called the Wilder Monument, and there get off with the driver and passengers to visit this point of interest, and then ride to a certain place on the return of the car, where they all got off. The evidence tended to show that this custom was well known to the driver and was tacitly consented to by him; that on the day when deceased met his death one of his companions had already mounted the car as it approached the Iowa Monument; that as it approached, the boys were there in the road for the purpose of swinging it, as was their custom; that one of them ran across the road about fifteen feet in front of the car to the left-hand side of the car, and that the driver was looking ahead and must have seen this boy; that two of the boys were in the road on the right-hand side for the purpose of swinging the car, one of them being the deceased; that they were in this position some twenty-six feet in front of the car, so that the driver, in looking ahead, must have seen them as well as the boy who ran across in front of the car; that as the car approached the place of the Iowa Monument, where these boys were congregated in the road, it was running about four *601 miles an hour; that the deceased attempted to mount the running-board of the car, and in doing this fell under the wheels and was run over and killed; that just as the deceased mounted the car, or attempted to mount it, the driver `speeded up' the car, and this sudden increase in speed caused deceased to fall. One of the witnesses testified: `He speeded up his car to keep us off; he hadn't been used to speeding up his car, and I just assume that was the reason.'"
This court held that the ruling announced by the Supreme Court in Ashworth v. Southern Railway Co.,
However, the Madden case is distinguishable on its facts from the case sub judice, and the application of the rulings there made do not require a holding that a cause of action was set out in the petition in the present case. The differences in the facts will now be set forth. In the Madden case the driver not only did not ordinarily attempt to keep the children from boarding the sight-seeing car, but he knew of their practice in mounting the running-board and riding upon it, and tacitly consented to their doing so. Only on the occasion of the death of the plaintiff's son did he do anything to prevent their mounting, and, contrary to what his custom in slowing down the car would naturally cause the children to expect *603 in their practice of boarding the car, on that occasion he speeded up the car under circumstances where the jury would be authorized to find that at the very moment he should have known that some of them would, as did the deceased, attempt to mount the running-board. The jury might well find that he should have known that his deliberate act would endanger the life of any one boarding the car at its increased speed. In the present case the deceased was among those accustomed to congregate about the store and truck. While there are allegations appropriate to an attempt to set out a cause of action based on the "attractive nuisance" doctrine, following the old turntable cases, it could not be said that the ruling there made could be so extended as to apply to a truck lawfully being used in the transaction of its owner's business on the streets of a municipality; and in fact the brief of counsel for the defendant in error expressly disavows any intention to rely on such doctrine, but the right of the plaintiff to recover is based solely on the alleged wilfulness and wantonness of the defendant's servants in the respects named in the petition. But the allegations of the petition show that on the occasion of the death of the plaintiff's son, although he had boarded the truck while it was parked, he was driven away, and it is alleged that the servants "immediately entered the cab of the truck, and without any warning started the same suddenly in motion and drove" away. The deceased having been driven away, it does not appear that he was near enough to require any warning of the intention of the driver to start the truck; and construing the petition most strongly against the pleader, on general demurrer, it must be taken as not showing that the servants knew that the plaintiff's son was on the truck when it was put in motion. It is not alleged that they knew of any habit of the children to renew any effort to board the truck after they had once been driven away. It is true that the petition alleges that they knew, or in the exercise of ordinary care should have known, that the children would renew their attempt to get upon the truck; but this is only an allegation of constructive knowledge, and the facts do not show that they knew that, as alleged, the child, 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 just to the rear of the cab of the truck. The truck was on a city street where it may reasonably be assumed that much traffic *604 was in progress about 12:30 p. m. To transact the legitimate business of their employer it was necessary that the servants drive this truck through city traffic, and to avoid injury or death to others it was incumbent upon them to obey the law and keep a sharp lookout ahead. to hold that they must fulfill this duty and at the same time, when putting the truck in motion, detect the presence of a trespasser hanging behind the cab, would be to hold that they must do the impossible or be Argus-eyed. With no actual knowledge or anything to put them on notice that this child, after being driven from the right side of the truck, would renew his attempt to ride, I think it should be held as a matter of law that no duty rested upon those on the truck, in the circumstances, to look to the rear or inspect to determine if any child might be hanging on the truck. Likewise there was no duty resting on them so to drive the truck as to avoid injury to any one not entitled to be and not known to be on the truck in its progress through the streets.
Few cases are to be found in other jurisdictions dealing with the questions here involved; but the rulings in several pertinent cases are stated in substance by well-known text-writers, and are in harmony with what I have stated above. "If a driver has reason to anticipate that a child might be near his automobile, it is his duty to see that the way is clear before starting the vehicle in motion [Freehill v.
Consumers' Co.,
The petition shows that the child was a trespasser, and no circumstances are made to appear requiring the defendant, through its servants on the truck, to anticipate that the child was on the truck at any time after he was driven off. Therefore the petition did not set forth a cause of action, and the general demurrer should have been sustained.