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Action for damages; nonsuit. DeKalb Superior Court. Before Judge Guess. April 24, 1958.
FELTON, Chief Judge.
The court erred in granting a nonsuit. There was no demurrer to the petition, the plaintiff proved the case as laid and proved no facts showing that he was not entitled to recover.
Gregory A. Shirley, by next friend, sued Mrs. Dora M. Dailey and Mr. and Mrs. R. B. Woods to recover damages for the alleged tortious injury received by him by reason of the alleged joint and concurring negligence of the defendants. The petition alleged: that the plaintiff, aged thirteen, was a student patrol boy at Brookhaven Elementary School at Brookhaven, Georgia; that about 2:20, on March 28, 1957, the plaintiff left the school to take his position in assisting other school children across the street and that as he was in the process of crossing the street in front of the school in a clearly visible marked cross-walk, he was struck, knocked down and dragged about seventy feet by an automobile driven by Mrs. Dora M. Dailey who was driving westerly on North Druid Hills Road and who was negligent in disregarding warning signs and driving too fast; that immediately in front of the school and to the east of the cross-walk for a distance of approximately thirty (30) feet the curb is painted yellow to indicate to motorists that that is a no-parking area; that the direct and proximate cause of the injuries was the negligence of the defendants; that the defendants R. B. Woods by and through his wife, Mrs. R. B. Woods, were negligent (1) in parking her car along the yellow line adjacent to the cross-walk knowing that she would obstruct the view of children attempting to cross the cross-walk, (2) in parking adjacent to the cross-walk knowing that the automobile would obstruct the view of motorists proceeding along said highway so that they would be unable to see children entering the highway in the cross-walk, and (3) in failing to warn the plaintiff as he walked in front of her car preparing to cross the street in a cross-walk knowing that her car was blocking the view so that he would be unable to see an automobile coming until he had stepped out into the street beyond the left side of her car. There was no demurrer to the petition. The Woods denied the material allegations of the petition except that they admitted paragraph 9 which alleged that the yellow curb indicated to motorists that it was a no-parking area. The plaintiff dismissed his action as to Mrs. Dailey not later than 1:40 on December 30, 1957, as the amendment so doing was filed with the clerk of the court at that time. At 2:25 on the same day the plaintiff's father as his guardian executed and delivered to Mrs. Dailey a covenant not to sue. At the conclusion of the plaintiff's evidence, on the defendants' motion, the court granted a nonsuit, to which judgment the plaintiff excepts.
The evidence material to a decision of the case was substantiality as follows: Gregory Shirley testified in part: that at the time he was injured he was thirteen years old; that he was a member of the school-boy patrol at school; that his post as a school-boy patrol was located across the street from the school and up from the school one-half block; that in going to his post he would come out the front door of the school, go down the sidewalk about sixty feet, step up about thirteen inches to the sidewalk, step down about three or four inches to the street at the curb and cross the street; that it was a painted cross-walk for the use of school children to cross the street in front of the school; that on this particular day he was in a hurry to get to his post; that he was carrying his books at the time and believes that he was putting on his patrol belt; that when he came up to the cross-walk there were cars parked at the curb on the same side of the street as the school; that the curb is painted yellow in front of the school; that when he got up to the sidewalk a car was parked at the yellow curb close to the cross-walk; that the car was within reaching distance of the cross-walk; that he saw two cars traveling in the opposite direction pass in front of the school but that neither was the automobile that collided with him; that he was approximately eight or nine feet into the street from the curb when he was struck; that he remembers nothing after getting in the road, that actually he did not remember stepping off the curb; that no automobile sounded a horn as he started out into the street, not that he could remember; that if Mrs. Woods called out to him a warning, he did not remember her doing so; that the cross-walk in front of the school is about nine feet wide; that he did not remember after stepping into the cross-walk from the curb in front of the parked automobile whether he looked either way to see if a car was coming, but he imagined he did; that he did not remember anything after stepping off the curb; as to whether he looked to see if any cars were coming before he got out to the cross-walk, he couldn't see the street very well; that the reason he couldn't see the street was because he couldn't see over the cars that were parked at the curb; that the school ground in front of the school was on a lower level than the sidewalk in front of the school and that one has to step up from the school ground to the sidewalk.
Mrs. Elinor Noreen Prater testified on behalf of the plaintiff in part as follows: that she was the school traffic policewoman at Brookhaven School; that she had been stationed for eight years at the time of the collision at Brookhaven School; that the curb in front of the school nearest the school was painted yellow for a distance of about fifty feet; that the cross-walk and yellow curb had been in front of the school as long as she had been stationed there; that parking at the yellow curb had been permitted as long as she had been there and that parents parked at the yellow curb for the purpose of picking up their children; that such procedure had been a custom; that Mrs. Woods' car was parked at the yellow curb and that the front end of her car was within two or three feet of the cross-walk; that the school ground in front of the school is below the street level and that you must step up two steps to get to the cross-walk; that it had been customary for mothers to park along the yellow curb in front of the school; that she had permitted such parking to be done every day prior to the time of this collision; that she had never been given any instructions not to allow cars to park at the yellow curb.
The court erred in granting a nonsuit. It is fundamental that where a petition is not demurred to and the jury is authorized to find that the plaintiff proves his case as laid he is entitled to a verdict, if the jury finds in his favor, unless the plaintiff goes too far and shows by his own evidence that he is in fact and in law not entitled to recover, and unless the latter appears, a nonsuit is improper. Fleming v. E. I. DuPont de Nemours & Co., 89 Ga. App. 837, 838 (81 S. E. 2d 529). The Woods contend that the nonsuit was proper for several reasons. The evidence authorized the finding that the parked car of the defendants obstructed the view of Mrs. Dailey and the plaintiff. This court cannot say as a matter of law that the plaintiff is barred from recovery by reason of his own negligence. Willis v. Jones, 89 Ga. App. 824 (81 S. E. 2d 517); Christian v. Smith, 78 Ga. App. 603, 606 (51 S. E. 2d 857); Georgia Midland &c. R. Co. v. Evans, 87 Ga. 673 (13 S. E. 580). If, as the trial court reasoned, there can be no negligence in parking a vehicle anywhere where the law does not forbid it, the petition was subject to general demurrer because it did not allege that any law or ordinance prohibited the parking of a vehicle at the place where defendants' car was parked and this court cannot take judicial notice that a yellow curb in and of itself means illegal and therefore negligent parking. See Maxwell v. State, 97 Ga. App. 334 (103 S. E. 2d 162). The admission of paragraph 9 by the defendants does not add materially to the plaintiff's case because the implication as to the meaning of the yellow line is too indefinite. As the case is to be tried again, if this admission is withdrawn, the issues in the case would be the same. The fact that cars customarily parked in the yellow line area by direction of the policewoman and consent of the police department is not conclusive on the question of negligence. One may not escape the consequences of his negligence by relying on another's direction or judgment, whether it be policeman (unless authorized by law) or other person. Arnold v. Chupp, 93 Ga. App. 583 (92 S. E. 2d 239). An act in accordance with custom is not relieved of its character as negligence as a matter of law merely because of the custom. ". . . An ordinary custom, while relevant and admissible in evidence on the issue of negligence, is not conclusive, especially where the custom is clearly a careless or dangerous one." 38 Am. Jur. 679, 680, Negligence, 34. Lastly, even if ordinarily the defendants' act would have been insulated as a remote cause and would not be actionable, this result does not follow when there are allegations of the knowledge of the consequences of the so-called remote cause. Indeed, it would seem that the acts of negligence of all the original defendants would be concurring and that if the jury found for the plaintiff Mrs. Woods' negligence would not be classed as too remote on the idea that Mrs. Dailey's negligence was an intervening agency. Sprayberry v. Snow, 190 Ga. 723 (10 S. E. 2d 179); Williams v. Grier, 196 Ga. 327 (26 S. E. 2d 698). The fact of the negligence per se feature of the case next above is immaterial, as the principle of intervening agency is a question of proximate cause.
We are requested to review and overrule Register v. Andris, 83 Ga. App. 632 (64 S. E. 2d 196). Even if we reversed the ruling in that case it would not aid the defendant in error in this case for the reason that in this case the plaintiff dismissed his action against Mrs. Dailey before the covenant not to sue was executed.
The court erred in granting a nonsuit.
Bryan, Carter, Ansley & Smith, Melburne D. McLendon, Hugh Burgess, contra.
Roy H. Stevens, Dunaway & Embry, James M. Embry, for plaintiff in error.
Saturday May 23 01:28 EDT

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