*1 688 warrant, even the defendant’s arrest
obtaining
though
effected,
had
been
reversal
the absence of a
requires
recognized
exception
warrant
requirement.”
384).
State,
(5) (254
Hardwick v.
291
App.
As the evidence
shows
that
circumstances
exigent
had
dissipated
as no
to the warrant
exception
requirement
appears,
ap-
the warrantless
search
pellant’s
luggage was constitutionally
impermissible.
(June 19,1979),
Sanders,
v.
57481. INGLETT v. RATLIFF.
Smith, Judge.
We the trial Ratliffs grant reverse court’s motion for a directed verdict. mother, and his this
Aрpellants, brought sustained when while injuries Inglett, action bicycle, by appellee. Inglett his collided with a car driven when the and a friend were home from school bicycling testimony collision occurred. The showed *2 hundred the twо from a distance of two sighted boys first in were his lane yards. They proceeding appellee, toward lanes, traffic. When the two appellee, they of saw switched up position and took a of the center Inglеtt just line. The occurred of his impact when lost control and swerved over the center line into suddenly appellee’s path. Appellee testified that before the accident he was at a miles traveling twenty per hour and that he applied his brakes "as quick [he] could,” car, when he sighted Inglett directly front of the at a distance of about ten feet. We cannot agree that the evidence introduced "
demanded a verdiсt
'Questions
favor of
negligence,
diligence,
and
contributory
negligence,
proximate cause are
the
and
peculiarly
jury,
matters for
a
court should not take
them,
of the
jury
solving
”
except
plain and indisputable
cases.’
Atlanta
Jones,
Coca-Cola Bottling Co. v.
Judgment J., McMurray, P. J., Banke, J., concur. Carley, specially. Deen, concurs C.J., Underwood, JJ., Birdsong Shulman, dissent. J., not participating.
Argued 13, March Decided
July 12, 1979. Eason, Jr., Richard B. for appellant.
Beck, Goddard, Murray, Owen & Samuel A. Murray, for appellee. Judge, concurring speсially.
Banke, 1. The appellate Georgia courts of have held long that questions of are negligence peculiarly matters for the court, not jury, resolve, clear, to except plain, palpable аnd indisputed cases. The why reason such matters are peculiarly for the is jury because what is negligence to one person may not be negligence another. That why is we need the enlightened consciences еxperience jurors to determine what is or is not *3 negligence.
2. I also find a fact issue in this case because the
appellant
only
was
14 years of
at
age
the time of the
auto-bicycle collision. Motorists owe children a grеater
than
duty
owe
adults. It goes without
that a
saying
child
does
simply
not exercise the same
of care
degree
for
his safety as an adult would under similar circumstances.
Furthermore,
children can be expected to make sudden
and erratic movements more often than adults. See
Watt,
(165
generally
Hieber v.
When the first saw the appellant yards away, traveling toward him in appellee’s own lane of traffic, should he have continued at his same speed, down, slowed or realizing that a very confused person was riding a in lane, the wrong pulled off to the side of the road? Should he have maintained his position close to the middle line whеn he saw the bicyclist child, to be a or should he have pulled over to the side right as far as his lane of traffic would permit? Such questions are best resolved a by jury. Judge, dissenting.
Birdsong, " contributory- 'Questions diligence, of negligence, mattеrs are peculiarly cause proximate and negligence take the and a court should not jury, for them, indisputable in except plain jury solving in the However, no conflict . . there is cases’. where with all reasonablе evidence, and that introduced therefrom, inferences shall demand deductions or find verdict, direct the jury the court should particular Thomas, Barnett v. entitled thereto.” party case demands The evidence as adduсed the instant and the trial court a verdict for the defendant (appellee) below, a verdict for the defendant directing was correct herein. memory The in this case had no as to injured party The as to this unfortunate happened. testimony what witnesses, Anthony accident came from Glen two Shockley, injured party a friend of the who was with him at the the accident and the bicycles time of testified in follows: "We was Shockley [sic] normal, home, Jeff, course, riding just just going me, side, and his my front of that would be on left foot off the knee come slipped pedal and his [sic] up handlebars, and hit the out of control and and he was road, said, he went over there on the аnd he left side of Oh, my and that hit... god, thing, got was the last Q. To the time Jeff came into contact with the car. You said his foot off and his knee hit the handlebar. slipped How much time was it the time his between foot first off slipped and the time the car hit him? A. The distance? Q. Well, Is that what said? distance or time. was so sudden didn’t down and really get *4 Q. measure it you or It was so fast... When anything. just were coming along, before the wreck were happened, you down coming along park, the street there at the ball could you tell us whether or not Jeff and his would have bicycle been over the center A. It line of the street? was not over . Q. center line. . Did ever Mr. Ratliffs car you see No., sir, I come across the road into lane traffic? A. your of occurred, accident was that over Q. didn’t. And where the in the southbound lane of traffic across the center line? A. say pedal Yes, Q. . sir. . You Jeffs left foot came off the something right jacked up about his knee and hit the handlebar and knocked him across the center line. Is that right? point impact, Yes, Q. A. sir... How far from the of point impact much how further from the did Mr. very Ratliffs car A. Q. travel? About two or three A feet. Tony, Yеs, Q. few feet. A. the sir... insofar as the where point inpact you occurred, I’m not if I sure asked or you you you whether what, said didn’t or know but do far know how that was from the center line ofthe road? A. any
You rate I Q. asked me that and sаid I didn’t know. But at you’re sure of the fact that it was over in Mr. Ratliffs Appellee part Yes, lane? A. sir.” testified, Ratliff as point you traveling, "Q. follows: At that what were say twenty [sic] Mr. Ratliff? A. I’d Q. about mile an hour... speed you normally say Is that the normal, Yes, sir, drive? A. I’d yes, boys . Q. sir.. Where were the on the street you They when in got saw them for the first time? A. were my they, thought, [sic] lane of traffic and as I me, seen opposite
over in the lane and rode Q. on towards me. boy riding subsequently Was the that wаs you, your right involved coming the accident with lane you you They towards when first saw them? A. my driving coming yes, They were in lane me, towards sir. got immediately figured [sic] over I after seen I them. [sic] away boys seen Q. me. And how far were the on the — bicycles you when saw them for the first time? A. About say approximately yards. I’d two Q. hundred How did your car come into contact or hit Jeff on the bicycle? approached approached as Jeff I him, me just split all seсond, of a flash,... darted put right, front of I me and on brakes and swerved to my stopped against [sic] car it come to rest curbing on the hand side and he hit me on the left your front fender. The Q. front car didn’t come my contact I with Jeff? A. fоund a small dent later in your Q. fender. . . Ratliff, Mr. did sound the horn on any car at time before the wreck? A. Did I Q. do what? your Sound the horn on No, sir, car? A. not; did I didn’t have time to sound the horn. It was done in a flash and I didn’t that’s the reason have time Q. to sound the horn. *5 Did you apply the brakes of your any car at time before the wreck I happened? them applied just about the time it I happened. don’t know I whether them applied before it but I think I happened, appliеd them as quick I I said, As I swerved Q. could. How far right. would Jeff say was from car your when you applied brakes for the first time? A. I’d say maybe ten foot [sic].”
From the evidence set above, forth apparent is that the appelleе could not be guilty any negligence.
It is unquestioned that appellee was in his lane of traffic, (20 at a proceeding reasonable m.p.h. and speed limit was 35 m.p.h.) no evidence of any misconduct on driving of the appellee was shown.
It is equally unquestioned the injured party’s (Jeff Inglett) foot slipped off the pedal, his knee came up and hit handlebars, and he simultaneously went out of control into the lane of traffic of the appеllee.
In Layton
(198
v.
Knight,
Ga. App. 113
SE2d
915),
Hall,
Judge
Hall,
now Justice
referred to
R.
Georgia
Harris,
(57
&c. Co. v.
A mere scintilla of inconclusive circumstanсes, giving no scope for legitimate reasoning by jury, does not create a genuine issue of fact. Barrett, v. King 107 Ga. (129 App. 122 393); SE2d Proctor, Young 119 Ga. App. (166 428). 165, 166 SE2d See also v. Gay, 117 Rosenfeld (159 Ga. App. 35 447); Bennett v. Associated Food Storеs, The evidence demands a verdict for the
the trial court was correct directing verdict for the (defendant below). I would therefore affirm the judgment of the court, trial respectfully dissent.
I am authorized to state that Chief Deen and Judge Judge Underwood join this dissent.