25 Ga. App. 694 | Ga. Ct. App. | 1920
The defendant contends that the allegations of the plaintiff to the effect that upon starting around the car and across the street he first looked to ascertain if danger existed, and was unable to discern the approach of defendant’s car, although the driver might at that time have seen the plaintiff, are manifestly incredible, and that the court will not accept, even on demurrer, a statement contained in a petition which on its face could not be true. He contends also that the plaintiff’s act of negligence in suddenly coming out into the road from behind the truck was such lack of care on his part as would necessarily prevent a recovery, despite the age of the plaintiff, since he by his petition charges himself with the degree of knowledge and discretion the exercise of which would have been sufficient to his protection. The determination of questions as to negligence lies peculiarly within the province of the jury. This general rule has been often stated both by the Supreme Court and by this court, and it is only in plain and indisputable cases that the court will be authorized to determine questions of negligence on demurrer (Western Union Telegraph Co. v. Spencer, 24 Ga. App. 471 (1), 101 S. E. 198). But, even if we were to assume, under the state of facts alleged in the petition, that this child was in some degree lacking in care in starting out across the road, it would still be a question for the jury to determine what it was that constituted the proximate cause of -the injury; that is to say, what and whose negligence the injury is properly attributable to. White v. Seaboard Air-Line Ry. Co., 14 Ga. App. 139 (80 S. E. 667); Ga. Ry. & Power Co. v. Ryan, 24 Ga. App. 288 (100 S. E. 713); Central of Ga. Ry. Co. v. Larsen, 19 Ga. App. 413, 418 (91 S. E. 517).
Ordinary care is defined to be that care which every prudent man exercises under the same or similar circumstances. In this case, however, the plaintiff, being a child less than fourteen years of age, was not bound to exercise the ordinary care exacted of every prudent man, but was bound only to exercise due care according to his age and capacity. Kendrick v. High Shoals Mfg. Co., 21 Ga. App. 315 (94 S. E. 987); Park’s Ann. Code, § 3474. In the case of Central R. Co. v. Rylee, 87 Ga. 491 (13 S. E. 584,
We do not think that because the plaintiff alleges that he in fact exercised “due care,” and set out acts and conduct on his part in support of such claim, in that he sought to look out for danger before attempting to cross the highway, the judge would be authorized, on demurrer, to determine what care should be exacted of the plaintiff, and that the plaintiff failed to meet his obligations. The allegations might well be taken to indicate that the plaintiff was a boy of sufficient intelligence and discretion to know that in crossing the highway he would be subjected to danger from the operation of automobiles, and that it was his duty to use his own discretion, whatever that might be, to protect himself. In the exercise of that discretion, however, conduct or delinquencies which could be taken as amounting to palpable negligence on the part of an ordinarily prudent man might not be accounted as negligence at all when considered as acts or omissions on the
In the case before us, negligence is charged on the part of the defendant as constituting the proximate cause of the injury, ana we do not think that it necessarily follows from the particular facts and all the circumstances set forth that the plaintiff failed to exercise that degree of care and caution which his actual capacity and discretion might have exacted of him, before entering upon the highway, and that the proximate cause of the accident was his failure so to do. It appears from the petition that the plaintiff had traversed about half of the distance of the roadway, or about twenty-five feet, before he was struck, and questions naturally arise relative to the respective duties owing by the plaintiff and.the defendant in reference to the conduct of each, after the plaintiff had entered upon the highway, as well as the manner of his entrance thereon. Even-after the plaintiff had entered upon the highway it was his duty to exercise that same degree of care and discretion with which one of his age and capacity was actually chargeable under the circumstances; and it was the duty of the defendant to exercise ordinary care and prudence not to injure the plaintiff, even though the plaintiff may have been in some degree lacking in care. The petition charges that the injury could
Judgment reversed.