Opinion
37448.
DECIDED JANUARY 13, 1959. REHEARING DENIED JANUARY 28, 1959.
Action for damages. Cobb Superior Court. Before Judge Manning. September 25, 1958.
Holcomb Grubbs, for plaintiff in error.
A. Tate Conyers, contra.
Questions of diligence and negligence, whose negligence and what negligence was the proximate cause of an injury, are questions peculiarly for the determination of a jury.
DECIDED JANUARY 13, 1959 — REHEARING DENIED JANUARY 28, 1959.
Lamar Raine, by John Raine as next friend brought suit against Shelly Charles individually and d/b/a Sandy Springs Farm. The petition alleged substantially as follows: Paragraph 1 alleges jurisdiction. Paragraph 2 alleges that as a part of the defendant's business he conducted a farm for the purpose of maintaining riding horses for the use of the general public on a contractual basis. Paragraph 3 alleges that prior to June 26, 1957, Mrs. John Stone owned a horse named Bit of Regret which she boarded at the defendant's farm for $25 a month. Paragraph 4 alleges that on June 25, 1957, the plaintiff entered into an agreement with the defendant whereby Bit of Regret would be maintained and available to his family for riding purposes for $60 a month, which sum was paid to the defendant by Mrs. Stone and the plaintiff. Paragraph 5 alleges that on or about August 15, 1957, the plaintiff made arrangements with the defendant to have said horse available for the plaintiff on said date. Paragraph 6 alleges that at all times material hereto the defendant had in his employ one agent and servant, known as James, on his premises for the purpose of assisting the defendant's customers in their recreation of horseback riding. Paragraph 7 alleges that on said date the agent and servant James was informed that the child and her father desired to ride said horse and James saddled and made ready said horse. Paragraph 8 alleges that the plaintiff father mounted the horse and rode around the riding ring once or twice, whereupon the right stirrup of the saddle became disconnected and came off. Paragraph 9 alleges that the agent and servant James fixed the stirrup and stated to the plaintiff father that the stirrup had been improperly fastened to the saddle; that the child then mounted the horse and rode around the riding track a time or two, the horse then traveling at slow walk, whereupon the right stirrup of the saddle became disconnected from the saddle causing the child to fall to the ground immediately under the horse and the horse stepped upon the child inflicting serious injuries. Paragraphs 10, 11, 12 and 13 describe the injuries allegedly received by the child who was eight years old at the time. Paragraphs 14, 15 and 16 allege that the defendant was negligent in certain described particulars for which the plaintiff sues for $10,000.
The defendant demurred substantially as follows: Paragraphs 1, 2, 3 and 4 demur generally to the plaintiff's petition upon the grounds that it does not set forth a cause of action against the defendant; that the negligence complained of was not the proximate cause of the injuries; that it affirmatively appears that the injuries were not due to any negligence on the part of the defendant and that it is affirmatively shown on the face of the petition that the injuries were the result of the negligence of the child's next friend, John Raines. Paragraph 5 specially demurs to paragraph 2 on the grounds that it is not alleged in said paragraph or elsewhere in said petition how and in what manner and for what purposes the defendant was conducting any business or how and in what manner and under what conditions the defendant permitted the general public to ride horses on said farm, and further demurs specially to said paragraph on the ground that the terms of the "contractual relationship" are not detailed. Paragraph 6 specially demurs to paragraph 4 on the grounds that a copy of said agreement relating to Mrs. Stone's horse is not attached to said petition as an exhibit, and all material details of the agreement are not alleged and set forth in said paragraph. Paragraph 7 specially demurs to paragraph 5 on the ground that it is not alleged in said paragraph or elsewhere in said petition how and in what manner the plaintiff father made arrangements for the defendant to have said horse available nor is it alleged what arrangements were made with the defendant, nor is it specifically alleged with whom the arrangements were made. Paragraph 8 specially demurs to paragraph 7 on the ground that it is not alleged who informed "James" of the plaintiff's desire to ride said horse, nor is it alleged who instructed or ordered said servant to saddle said horse. Paragraph 9 specially demurs to paragraph 9 and to the words "stated to plaintiff's father that stirrup had been improperly fastened to the saddle," upon the grounds that said allegation is of no probative value, is not germane and is irrelevant and immaterial. Paragraphs 10, 11, 12 and 13 demur specially to those subparagraphs of paragraph 14 alleging negligence of the defendant in certain particulars on the grounds that it is not stated in said subparagraphs or elsewhere in said petition how and in what manner the defendant was under the obligation to use ordinary care to protect the plaintiff and how and in what manner the defendant failed to exercise the same; how and in what manner said saddle was defective and faulty; under what circumstances the defendant furnished the plaintiff with a saddle; how and in what manner the defendant failed to use ordinary care in the saddling of said horse; how and in what manner the saddling of the horse was negligently done, and defendant demurs specially to subparagraph (d) of paragraph 14 on the ground that the allegations thereof do not constitute any negligence on the part of the defendant.
The court passed the following order regarding the demurrers: "The above and foregoing demurrer coming on for a hearing, and after argument of counsel grounds 7, 11 and 12 are sustained. All other grounds are overruled. The plaintiff shall have five days in which to amend his petition to meet the grounds of the demurrer sustained."
The plaintiff filed the following amendment to the petition: "1. Plaintiff amends her petition by striking paragraph 5 and substituting in lieu thereof the following: `That on or about the 15th day of August, 1957, petitioner's father called defendant's place of business by telephone and talked with a colored person whose first name is James, which said person was an agent and servant of defendant; and at that time plaintiff's father made arrangements with said agent and servant to have said horse ready and available for use by petitioner and petitioner's father on that date.'
"2. Plaintiff further amends her petition by striking paragraph 14 (b) and substituting in lieu thereof the following: `In failing to furnish plaintiff with a saddle which would support plaintiff when said saddle was used in the manner in which it was intended to be used.'
"3. Plaintiff further amends her petition by striking paragraph 14 (c) and substituting in lieu thereof the following: `In failing to properly inspect said saddle to discover the defects therein at a time when defendant had knowledge that the stirrup on said saddle was not functioning in the manner in which it had been intended to function.'"
The defendant renewed the demurrers which renewed demurrers were overruled by the trial judge. It is on this judgment that the case is here for review.
Our attention is called by counsel for the plaintiff to Lanier v. Turner, 73 Ga. App. 749, 752 ( 38 S.E.2d 55) wherein this court said: "It is the established law of our State that questions of diligence and negligence, involving comparative negligence and what negligence constitutes the proximate cause of an alleged injury, are peculiarly for the determination of the jury, and this court will not solve such questions on demurrer except in palpably clear, plain, and undisputable cases."
It is the contention of counsel for the defendant that, after the stirrup had come loose and been fixed by the servant of the defendant, the duty of knowing that the stirrup was defective then devolved upon the father of the injured child, and that, when the father allowed the child to use the stirrup thereafter, such amounted to a plain and palpable act of negligence such as to defeat the cause of action. It is our opinion that the question here presented is for the determination of a jury as to whose negligence and what negligence was the proximate cause of the injury. Even if the father was negligent (which we certainly do not concede) such negligence would not be imputable to the child. See Code § 105-205 which states in part: ". . . In a suit by an infant the fault of the parent, or of custodians selected by the parents, is not imputable to the child." See also A. B. C. Railroad Co. v. Loftin, 67 Ga. App. 601 ( 21 S.E.2d 290). In Atlantic Coast Line R. Co. v. Coxwell, 93 Ga. App. 159 ( 91 S.E.2d 135) this court by a unanimous decision of the full bench of six judges, overruled practically all of the cases cited by counsel for the defendant including the following: Brinson v. Davis, 32 Ga. App. 37 ( 122 S.E. 643); Carroll v. Georgia Power Co., 47 Ga. App. 518 ( 171 S.E. 208); Louisville Nashville R. Co. v. Patterson, 77 Ga. App. 406 ( 49 S.E.2d 218).
In support of our position affirming the case at bar see Butner v. Lord, 95 Ga. App. 782 ( 98 S.E.2d 646).
Under the pleadings as depicted by this record, the trial court did not err in overruling the general or special demurrers for any of the reasons assigned.
Judgment affirmed. Townsend and Carlisle, JJ., concur.