BEFORE HAWKINS, P.J., DAN LEE AND PRATHER, JJ.
HAWKINS, PRESIDING JUSTICE, FOR THE COURT:
This is an appeal by Edward Charles Bland, administrator of the estate of Charles Andre Bland, and Margueritie G. Bland, individually and as the guardian of Edward Kenard Bland, from an adverse judgment in the circuit court of Clarke County in an action for the wrongful death of Charles Andre. The defendants and appellees are Raymond D. Briggs, a truck driver, and his employer Earl Rolison.
The Timber Realization Company lumber mill is on the East side of Highway 45 in the town of Quitman. It has a cyclone fence in front with a driveway and gate 44 feet wide leading onto the shoulder and hard surface of the two-lane highway. Between the East shoulder and the fence is a shallow ditch draining through a culvert under the driveway. Concrete curbs are over each end of the culvert at the North and South end of the driveway.
Around 2:00 p.m. on the afternoon of July 29, 1983, Raymond D. Briggs, who was driving an eighteen-wheel Mack truck and log trailer, had just unloaded, and planned to drive approximately 20 miles out in the country for one more load for the day. The weather was clear and dry. The trailer was approximately 38 feet in length from the driver of the cab to the rear. The tractor had ten wheels, the trailer eight, all eight at the rear of the trailer. The trailer connected to the cab by a long coupling pole six-to-eight inches in diameter. This pole was over 40 feet in length, so that the trailer could be lengthened or shortened.
Briggs, 45, had been driving a truck for eighteen years. He earned $50 a day in wages.
It was Briggs's intention to pull out into the highway and turn left, or South, and drive to the timber site. In making such a turn the driver would pull the tractor to the far (West) side of the pavement before making the turn. This was to avoid the rear of the trailer, which made a narrower arc in its turn than the tractor, catching the fence. Briggs pulled his truck and trailer toward the left, or South side of the open driveway, past the gate and sufficiently close to the highway to observe on-coming traffic from each direction.
As he stopped just outside the gate, Briggs noticed three boys standing at the culvert on his left, the South side of the driveway. Two were eleven, and one nine years of age. The boys obviously saw the struck, and were standing, not walking. One of the eleven-year-old boys was Charles Andre Bland. Briggs testified he stopped his truck over a minute before pulling out in the highway, observing the boys while stopped.
In the past Briggs had seen children playing alongside the highway on the opposite side, and always to him seemed to observe the traffic of the trucks.
Before driving forward, Briggs looked to the right out on the highway, and saw a car about a block North coming South, and as he looked to the left he saw another car about a block South coming North. He pulled out into the highway, and just as he did, he noticed the boys still standing there. From the moment he started moving forward onto the highway, however, Briggs never attempted to see where the boys were. He no doubt assumed they would remain standing there until tractor and trailer rig drove past them on out into the highway.
Briggs made his turn and had driven just over a hundred feet down the highway when he noticed a man in a North bound car hollering. He stopped, turned and looked in his rear view mirror and saw the body of a child on the edge of the East side of the pavement.
Charles Andre had been struck and crushed by the left wheels of the trailer. A large stain of blood was spread and splattered on the East edge of the pavement, approximately five feet North and 29 feet West of the South gate post. This blood splotch was approximately 25 feet Northwest of where the boys were standing when Briggs last saw them.
Following trial there was a jury verdict in favor of the defendants, and the ...