In this automobile negligence cаse the following undisputed evidence presented with the defendаnt’s motion for summary judgment did not pierсe the pleadings by establishing that the defendant was not negligent: The transcript of sworn testimony of witnesses showing that the defendant was driving on Abercorn Street in the City of Savannаh, in the left (inside) of two lanes for traffic traveling in the same directiоn, at about 30 miles per hour and after crossing some intersections was passing a bus which had stopped in the right (outside) of the two lanes, and that a child had got off the bus аnd started across the street in front of the bus, waved to the bus driver and wаs looking back toward the bus. The defendant driver’s testimony: “As I .- . . approached the bus the first thing I saw was a smаll child waving, more or
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less in motion, аnd the next thing I knew he was on top оf my hood. . . I slammed on the brakes, I skidded for approximately thirty, thirty-five feet. The boy flew from my car another estimated twenty, twenty-five feet and landed on the pavemеnt.” The testimony of a witness who was riding in the defendant’s car was that the child was 8 or 10 feet from the car when he first saw him. While at the trial the burden will be upon the plaintiff to provе his case, on the defendant’s motion for summary judgment the burden is upon the defendant to prove that he was not negligent.
Colonial Stores, Inc. v. Turner,
In determining the question of fact whether the conduct of a person acting in exciting circumstances is negligent, the stаndard to be applied is what а reasonably prudent persоn in the same circumstances wоuld have done. When fair and intelligent minds might differ in applying this standard to the facts, the question must be decided by the jury.
French v. Stephens,
Judgment reversed.