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BECK v. WADE, by Next Friend.
37779.
Action for damages. Albany City Court. Before Judge Jones. April 23, 1959.
TOWNSEND, Judge.
2. The evidence did not demand a finding that the plaintiff failed to exercise ordinary care for her own safety, and the general grounds of the motion for new trial are without merit.
Mary Sue Wade, a minor 16 years of age, by her mother as next friend filed an action in the City Court of Albany for damages against W. T. Beck, d/b/a Beck's Cabs, alleging that at her request the defendant sent a taxicab to transport her from her school to her home; that she was a fare-paying passenger; that when the plaintiff reached her home the driver stopped in the street; that she had an armload of books; that the right rear door of the taxi was defective in that the holding device had been sprung out of line so, that, as, the plaintiff descended, the door closed with great violence, fracturing the first joint of her thumb, and that the driver at that moment put the cab in motion so that the force of the moving car jerked her thumb free from the closed door. Certain demurrers were filed and overruled. The defendant denied substantially all of the plaintiff's allegations. On the trial the plaintiff testified to the facts set forth in her petition, which facts were corroborated by her mother and her physician, in so far as the injury was concerned. The defendant and his driver testified that their records showed a fare on the date in question taken on at the high school but denied that the taxicab in question had a defective door. The defendant testified that operating a cab with a sprung door is dangerous to passengers, and also testified that his drivers all had orders to open, and close the doors themselves and not let the passengers do so. The plaintiff testified positively that when she entered the cab, the driver warned her that the door was sprung, but that when she alighted he made no effort to open or hold the door for her.
The jury returned a verdict for the plaintiff. The defendant made a motion for a directed verdict at the close of the evidence, and a motion for judgment notwithstanding the verdict thereafter. He also filed a motion, for new trial which was amended by the addition of one special ground. The judgments denying these motions and overruling two of the grounds of demurrer are here assigned as error.
1. (a) The petition alleged that the defendant was negligent, among other things "in that [he] furnished a defective cab for the transportation of the plaintiff and other members of the general public in violation of Code 68-1701 and was therein guilty of negligence per se" and that he "violated Code 68-1723 and was therein guilty of negligence per se." The first of these sections provides in part: "It is a misdemeanor for any person to drive or move or for the owner to cause or knowingly permit to be driven or moved on any street or highway any vehicle or combination of vehicles which is in such unsafe condition as to endanger any person, or which does not contain those parts or is not at all times equipped with such lamps and other equipment in proper condition and adjustment as required in sections 68-1701 through 68-1722, or which is equipped in any manner in violation of said sections, or for any person to do any act forbidden or fail to perform any act required under said sections." Code (Ann.) 68-1722 provides: "It is unlawful for the owner, or any other person, employing or otherwise directing the driver of any vehicle to require or knowingly permit the operation of such vehicle upon a highway in any manner contrary to law." Chapter 68.-17 of the Uniform Traffic Act (Ga. L. 1953, p. 556 et seq.) deals with certain equipment on automobiles, including specifically lights, reflectors, signals, horns, brakes and mirrors, and it is contended that the intent of the legislature in respect to the Code sections above quoted is to confine the offense to the specific equipment mentioned in the chapter, and also that the intent of the sections is directed toward moving vehicles rather than toward a vehicle which has stopped to allow a passenger to get out. We are directed to the preamble of the act in support of this contention, but note that it states as one of its purposes "to define certain crimes in the use and operation of vehicles" which, we think, is broad enough to cover the subject matter of these Code sections. "Ejusdem generis is a rule of construction to ascertain and give effect to legislative intent. Where general words are followed by a description of specified subjects, the meaning of the general words ordinarily will be presumed to be limited to the enumerated special subjects, and to include only those things of the same nature as those specially enumerated, unless a clear manifestation of a contrary intent appears." Jenkins v. Jones, 209 Ga. 758, 761 (75 S. E. 2d 815). Ordinarily in such a case the objects are linked by conjunctive rather than disjunctive words or phrases. That the statute here proscribes any vehicle "in such unsafe condition as to endanger any person", and then continues " or does not contain those parts . . ." etc.; does not, we think, limit the effect only to the parts enumerated, but is sufficiently broad to cover any other equipment on a motor vehicle which, being itself defective, renders the vehicle dangerous to others. An automobile is equipped with wheels, and if a wheel is so defectively attached to the body that it flies off, injuring another, it would seem to come within these sections. A door is equipped with a holding device to keep it from slamming shut on the limbs of passengers; when the device is defective and the door does so, it is, as the defendant admitted in his testimony, dangerous to passengers. It was accordingly not error for the court to overrule the special demurrers directed to these allegations.
(b) In view of what has been said, it was not error for the court to charge that it is negligence per se for a person to violate a Code section; that Code (Ann.) 68-1701 makes it a misdemeanor for an owner to knowingly permit a vehicle to be driven on a street or highway which is in such unsafe condition as to endanger any person, and that whether or not this vehicle was in such unsafe condition is a matter for the jury to determine by a preponderance of the evidence. The special ground of the amended motion for new trial is without merit.
2. The general grounds of the motion for new trial as well as the motion for a judgment notwithstanding the verdict are argued by the plaintiff in error to be meritorious for the single reason that the evidence demands a finding that the plaintiff was so lacking in ordinary care for her own safety as to bar her from recovery. Under Code 105-603, if the plaintiff by ordinary care could have avoided the consequences to herself caused by the defendant's negligence, she is not entitled to recover. The plaintiff here, a 16-year-old girl laboring under no disability, testified that when she entered the cab the driver "told me to watch the spring on the door, it was sprung." A young person of 15 or older is presumptively chargeable with diligence for her own safety where the peril is palpable and manifest. Paulk & Fossil v. Lee, 31 Ga. App. 629 (2) (121 S. E. 845); Greeson v. Davis, 62 Ga. App. 667, 670 (9 S. E. 2d 690). In Laseter v. Clark, 54 Ga. App. 669 (5) (189 S. E. 265) it was: held: "Whether or not, as in the instant case, a boy 15 years of age, who, in a collision with another automobile, was riding on a truck driven by one whose negligence was not imputable to him, who presumptively had not acquired by experience a knowledge of the relative speeds and distances of moving automobiles, and who alleged in his petition, that he did not fully apprehend the impending danger, with facts tending to support such a general averment, should be held presumptively liable to the same standard of care as would control an ordinary adult or an ordinarily experienced adult driver, he could not in any event be held liable as a matter of law for any contributory negligence on his part, unless his peril was palpable and manifest, and he failed to exercise that care which would have been exercised under similar circumstances by an ordinarily prudent adult." Only in clear and palpable cases, where it appears that one recklessly tests an observed and clearly obvious peril, or voluntarily assumes a position of imminent danger, will he be barred from recovery as a matter of law; otherwise, the question of what negligence, as well as whose negligence is responsible for the injury is a jury question. Atlanta Transit System v. Allen, 96 Ga. App. 622 (101 S. E. 2d 134; Southern Stages v. Clements, 71 Ga. App. 169 (30 S. E. 2d 429). There is a difference between mere knowledge of a defect and full appreciation of the risk involved. Scott v. Rich's, Inc., 47 Ga. App. 548, 551 (171 S. E. 201). It is true that the plaintiff was warned of the defective door when she entered the cab. It is also true that the jury believed the defendant's evidence to the
effect that all drivers were instructed to open and close the taxi doors themselves, and the plaintiff's evidence that the driver, knowing of the defective condition of the door, failed to do so. The only way she could get out of the vehicle was to open the door herself, and she was further burdened with a number of school books which it was necessary for her to lift out by turning her back on the door; while she was in the act of retrieving them the door slammed on her thumb. Whether under these circumstances the plaintiff was guilty of such negligence as to bar her recovery was properly left for decision by the jury rather than the court.
The trial court did not err in any of its rulings complained of.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.
J. Neely Peacock, Jr., contra.
Perry, Walters & Langstaff, Robert B. Langstaff, Joseph B. Powell, Jr., Fred B. Hand, Jr., for plaintiff in error.
DECIDED JULY 15, 1959 -- REHEARING DENIED JULY 28, 1959.
Saturday May 23 00:32 EDT


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