Teppenpaw v. Blaylock
Teppenpaw v. Blaylock
Opinion of the Court
In this action by a four-year-old minor for damages for personal injuries, the verdict finding the defendant "not guilty of negligence” and the judgment in favor of the defendant, were authorized by evidence that the plaintiff girl, who was under the "supervision” of an adult baby-sitter, was playing in a park across the street from the sitter’s apartment, from which the sitter could watch her; that the sitter was aware that the street was a dangerous one with respect to traffic and children; that when the plaintiff got ready to come back across the street some three or four minutes after the sitter had last watched her playing, she called to the sitter while standing still immediately in front of the last one of a line of parked automobiles across the street from the apartment; that the sitter went to the front door of her apartment and
Two of the trial court’s instructions to the jury were as follows: (a) ”[I]f you should determine that the actions of a third party, specifically of Mrs. Manders [the baby-sitter], who is not a party to this law suit, were the sole proximate cause of the injuries sustained by the plaintiff, then the plaintiff cannot recover from the defendant in this case, and in such an event you would be obligated to return a verdict in favor of the defendant.” (Emphasis supplied.) (b) "[Ajlthough a child of the age that the plaintiff was at the time of the occurrence in question cannot be legally guilty of negligence as I have previously told you, I charge you that if you find that the acts of the plaintiff under the circumstances of this case were the sole proximate cause of the collision in question and of the injuries to the plaintiff, then the plaintiff cannot recover, and it would be your duty to find in favor of the defendant.” (Emphasis supplied.)
The appellant contends that these instructions in combination v/ere harmful in that the negligence, if any, of the custodian was not the sole, or even a, proximate cause of the injuries because it merely caused "a condition providing an opportunity for other causal agencies to act” (quoting 65 CJS 1135, Negligence, § 104), that they permitted the
The instructions complained of were not erroneous. "Where the sole proximate cause of an injury to the plaintiff is the negligence of some one other than the defendant, there can be no recovery against the defendant, although the defendant may have been guilty of negligence.” Ga. R. & Power Co. v. Bryans, 35 Ga. App. 713 (1) (134 SE 787). (Emphasis supplied.) "[Njegligence which is the proximate cause of an injury is such an act that a person of ordinary caution and prudence would have foreseen that some injury might likely result therefrom.” Richards v. Harpe, 42 Ga. App. 123 (10) (155 SE 85). A four-year-old child is conclusively presumed to be incapable of contributory negligence. Code § 105-204; Crawford v. Southern R. Co., 106 Ga. 870 (2) (33 SE 826); Riggs v. Watson, 77 Ga. App. 62 (47 SE2d 900). Under the evidence the jury would have been authorized to find that the custodian should have foreseen that the four-year-old minor might attempt to cross the street, which the custodian knew to be dangerous, was negligent in not taking measures to protect her, and hence that her negligence was the sole proximate cause of the injuries, as the court charged. See Atlanta, B. & C. R. Co. v. Loftin, 67 Ga. App. 601 (21 SE2d 290). With respect to the second instruction, even though the plaintiff could not by law be guilty of contributory negligence, nevertheless her actions could have been the sole proximate cause of her injuries, which would necessarily exclude the negligence, if any, of the defendant as a proximate cause. "If . . . the defendant did not owe the plaintiff any legal duty which [he] neglected to perform, no action could be maintained for negligence on [his] part. Actionable negligence does not exist in
Judgment affirmed.
Concurring Opinion
concurring specially. The second division of this opinion deals with two exceptions to the charge of the court by plaintiff, the gist of the complaints being that the trial court was in effect instructing the jury that a verdict for defendant might be rendered if the custodian of the minor child (baby-sitter), or the minor child (plaintiff) created a condition which became the sole proximate cause of the injuries. It is urged that the minor plaintiff was too young to be liable for negligence; and the custodian’s negligence was not chargeable to the minor plaintiff. However, defendant’s answer specially pleads "accident” as a defense, and there was evidence to support same. My view of the case is that the language used by the trial judge in his charge is equivalent to charging that plaintiff could not recover if the injuries were the result of an accident. See Code § 102-103; Savannah Electric Co. v. Jackson, 132 Ga. 559 (4a) (64 SE 680); He-Po Gas Incorporated v. Roath, 87 Ga. App. 827 (6) (75 SE2d 451); Young Men’s Christian Assn. v. Bailey, 112 Ga. App. 684, 701 (146 SE2d 324).
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