9 S.E.2d 690 | Ga. Ct. App. | 1940
1. Under the law and the evidence the verdict in favor of the defendant bus driver was demanded as a matter of law, and the court abused its discretion in granting a new trial as against this defendant.
2. Because of the above ruling it is unnecessary to pass on the assignment of error on the judgment overruling the demurrer to the petition.
1. While the first grant of a new trial will ordinarily not be disturbed, the judgment will be set aside if, under the law and the evidence, a verdict is demanded as a matter of law in favor of the opposite party. In the present case a careful consideration of the record convinces us that the plaintiff was not entitled to recover against Greeson. It appears that he was engaged in transporting school children to and from Resaca School in Gordon County. The plaintiff's four children, including his daughter Oma, a very bright and industrious young girl fourteen years of age, attended the school, and on the day of the homicide she had been brought from school by Greeson in the usual school bus. The plaintiff and his family lived about two miles north of Resaca School. For several years they had occupied a house on the right or east side of the highway, but for about a year they had lived on the west side of the highway almost immediately opposite. On the day of the homicide Greeson drove the bus to the right or east side of the highway while proceeding north, the wheels on the left side of the bus being just on the pavement and the wheels on the right side resting on a shoulder which was six or eight feet in width, constituting the beginning of a driveway which led to the house on the right. The *669 children had assembled at this place for transportation, not only during their residence on the right side of the highway, but also during the time they had been living on the west or left side of the highway. The driver opened the door and permitted the four children to alight on this shoulder in a direction eastwardly from the highway. At this moment, about a quarter of a mile northward, a truck driven by Wellman and observed by Greeson was coming south on the highway, which for that distance was practically straight. Two small brothers of Oma remained on the east side of the highway, but Oma and her sister, after passing around the rear of the bus, immediately sought to proceed across the highway. The sister ran safely across. Oma followed, but on reaching the western half of the highway she was run over by Wellman's truck. Her body was found about seventy feet beyond the point of impact, and the truck continued farther south for a distance of about one hundred feet before stopping. The actual crossing of the two girls was witnessed by two persons, a driver of an automobile following the truck and the driver of the truck. The automobile was traveling forty to forty-five miles an hour within one quarter of a mile from the scene of the homicide, and was gradually overtaking the truck. The driver testified as to seeing the children alight from the bus and "some of them" start across the highway. He gave no testimony as to the specific manner in which Oma attempted to cross, except that she started across immediately after leaving the bus. The uncontradicted testimony of the truck-driver was that he met and passed the bus at a point about 100 to 125 feet from where it had deposited the four children, and "just as I got even with them [the children] the little girl broke loose from her sister and ran across the road, and the big girl started across and then stepped back and then took a notion she would go across, and then the truck hit her. They were standing still where they had alighted. I thought they were waiting for me to pass; the two little boys were still there after the accident." Greeson testified that he could not state positively whether on this occasion he cautioned the children to be careful in crossing the highway, but that he had been depositing them at the same place at all times, and had warned them repeatedly about the hazards of the highway. A child passenger on the bus corroborated his testimony in respect to numerous warnings. *670
We find nothing in the evidence that would authorize a finding that the bus driver was negligent toward the deceased. A carrier of passengers, as Greeson was shown to be, must exercise extraordinary diligence to protect the lives and persons of his passengers, but is not liable to them for injuries after having used such diligence. Code, § 18-204; Sheffield v. Lovering,
This case is very different from Gazaway v. Nicholson,
2. Because of the above ruling it is unnecessary to pass on the assignment of error on the overruling of the demurrer.
Judgment reversed. Stephens, P. J., and Felton, J., concur. *672