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WALDROP et al. v. PADGETT.
45015.
JORDAN, Presiding Judge.
Action for damages. Cobb Civil and Criminal Court. Before Judge Bullard.
The defendants appeal from the denial of a summary judgment, contending that the evidence on motion for summary judgment eliminates negligence of the driver of a vehicle as the cause of injuries to a nine-year old child who was struck by the vehicle when he suddenly entered the street on the driver's right from between two parked automobiles in a school zone.
Whether the driver was operating the vehicle "at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards when existing" or at an appropriate speed "when special hazards exist with respect to pedestrians" (see Code Ann. 68-1626 (a, c)) as negligence proximately causing the child's injuries is properly a matter for jury determination, and not for determination by the court under the evidence submitted in this case on motion for summary judgment. See Southern Bell Tel. &c. Co. v. Beaver, 120 Ga. App. 420 (170 SE2d 737); Kennedy v. Banks, 117 Ga. App. 197 (160 SE2d 205); s.c., 119 Ga. App. 831 (169 SE2d 180); Christian v. Smith, 78 Ga. App. 603 (51 SE2d 857); Hieber v. Watt, 119 Ga. App. 5 (165 SE2d 899); Blair v. Rayburn, 120 Ga. App. 57 (169 SE2d 679).
The opinions of speed or that the incident was unavoidable will not support a summary judgment. Opinion testimony of an ultimate material fact is never sufficient to authorize the grant of a summary judgment. Harrison v. Tuggle, 225 Ga. 211 (2) (167 SE2d 395); Ginn v. Morgan, 225 Ga. 192 (167 SE2d 393); Truluck v. Funderburk, 119 Ga. App. 734 (168 SE2d 657); General Motors Corp. v. Wilson, 120 Ga. App. 156 (169 SE2d 749); Williams v. Melton, 120 Ga. App. 466 (171 SE2d 318).
Jean E. Johnson, Sr., for appellee.
Edwards, Bentley, Awtrey & Parker, Scott S. Edwards, Jr., for appellants.
ARGUED JANUARY 9, 1970--DECIDED MARCH 4, 1970.
Friday May 22 17:15 EDT


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