18 S.E.2d 512 | Ga. Ct. App. | 1942
A carrier of passengers must exercise extraordinary diligence to protect the lives and persons of its passengers, but it is not liable to them for injuries after having used such diligence.
(a) In the exercise of this diligence it is under a duty to deposit its passengers from a bus at a reasonably safe place for alighting and crossing a highway, but it is under no obligation to wait until approaching automobiles have stopped or to warn passengers of the usual dangers of traffic on a highway which in the exercise of ordinary care would be avoidable.
(b) In the case of a child of tender years this diligence must be exercised with a consideration of the limited abilities of the child; and whether, with respect to the child, a safe place has been selected is usually a question for the jury. By analogy to the provisions of the penal law in regard to capacity to commit crime, there is a presumption that a young person of the age of fourteen years is capable of realizing danger, and of exercising the necessary forethought and caution to avoid it, and is chargeable with diligence for his or her own safety, where the peril of automobiles on a highway is plainly manifest.
(c) The allegations of the petition in the present case, where the plaintiff sought to recover damages for the alleged negligent homicide of her daughter, a school girl fourteen years of age, show conclusively that the bus driver deposited her in a place which was safe for one of her years and laboring under no disability, and that her death was caused by her own carelessness in the circumstances under which she attempted *535 to cross the highway, after alighting from the bus through a door which opened upon a shoulder of the road, and not from any negligence of the driver. Accordingly, the petition did not set forth a cause of action, and the court erred in overruling the defendant's general demurrer.
The defendant Jordan filed what he termed a plea to the jurisdiction on the ground that the petition contained no prayer for process against him. This plea was treated as a demurrer by the court and was overruled. The defendant Jordan also filed a demurrer on general and special grounds. One ground of special demurrer was that an allegation of the petition that it was the duty of the defendant Jordan to transport school children to their respective homes from school was a mere conclusion of the pleader. Thereafter the petition was amended by attaching a copy of the contract between Jordan and the school authorities, and it was recited that the petition was amended to conform to the contract. Under the contract Jordan agreed, among other things, to "transport the children over bus routes" to and from school daily. Renewed demurrers, general and special, were overruled by the court. The defendant filed an answer denying liability, and by amendment set up that on January 14, 1941, the plaintiff received *538 from Lloyds of London the sum of $6250 which was paid on behalf of L. E. Roth, Ann M. Roth, Blue Ribbon Shows Inc., under an insurance policy, insuring L. E. Roth, in full and complete settlement of the liability of said persons to the plaintiff on account of the death of the plaintiff's daughter, and that as a result of said payment the plaintiff released the said L. E. Roth from all further liability to the plaintiff. To the amendment was attached a copy of the writing signed by the plaintiff at the time she received the $6250. It was further alleged in the amendment that after executing said instrument the plaintiff dismissed her suit then pending against Roth, and that by operation of law, as provided in Code §§ 20-909, 20-910 and other law applicable thereto, the receipt of the $6250 and the execution of the paper in question amounted to a release of the said Roth and others named in said writing and said release operated to discharge the defendant Jordan from further liability to the plaintiff. It was further alleged that, if the receipt of said money and the execution of the said instrument of writing should be held not to be a full and complete release of the defendant Jordan by operation of law, the said sum is for the full amount of damage suffered by the plaintiff, and for said additional reason the plaintiff is not entitled to recover from the defendant Jordan. The copy of the agreement shows, after reciting the consideration of the $6250 and the agreement of the plaintiff not to make any further claim and to hold L. E. Roth, Ann M. Roth, Blue Ribbon Shows or Blue Ribbon Shows Inc. or their personal representatives, heirs, successors, or assigns harmless against any and all claims or liabilities by reason of the said death, that "This agreement, however, is not entered into or intended by us as a release of any claim or action that we might have against any other person or persons, and particularly against Lee Jordan, by reason of the matters set forth, and it is expressly agreed and understood that this agreement is not in any wise to enure to the benefit of the said Lee Jordan," and that "It is thoroughly understood that this instrument is a covenant not to sue in the future the said L. E. Roth, Ann M. Roth, Blue Ribbon Shows, and Blue Ribbon Shows Inc., or their personal representatives, heirs, successors, or assigns and is not a release of our rights against Lee Jordan." The plaintiff demurred to the amendment on the ground that, for stated reasons, it did not set up any defense. *539 The court sustained the demurrer and struck the amendment. Error is assigned on the judgment of the court in overruling the general and special demurrers of the defendant Jordan and the plea to the jurisdiction and in sustaining the plaintiff's demurrer to the amendment to the defendant's answer and in striking the same.
1. The present case is controlled on its facts by Greeson v.Davis,
2. Because of the above rulings it is deemed unnecessary to pass on the other assignments of error.
Judgment reversed. Felton, J., concurs. Stephens, P. J.,concurs in the judgment.