58 Ga. App. 200 | Ga. Ct. App. | 1938
This is a suit by Luna Mae Wise against the Atlanta & West Point Railroad Company, for damages because of the homicide of her husband at a railroad crossing. The main point insisted on by counsel revolves around the question as to whether the crossing was a private crossing or was a public crossing, and the consequent duty owed to the deceased by the defendant because of the blow-post statute. The petition alleged that plaintiffs husband was killed by defendant’s train at what is known as Hallman’s ‘Crossing, which crossing "is part of a road that crosses the tracks of said defendant, and the said road and crossing is and has been used and traveled by the public for more than forty years. The said road connects the Newnan and Atlanta road, now State Highway Route 41, with the Palmetto and Senoia road, and is a road on which many people live. The said road has been worked and kept in repair for travel by the public and has been used and traveled by the public. The public has walked on said road, rode in buggies, wagons, and in motor vehicles over the same. The said road has been worked by the County of Coweta, the county in which the said .Hallman’s Crossing is located, and also been worked under the supervision of Coweta County road supervisors. The said road and crossing has been used by the public for said forty years without the disapproval of said defendant; and petitioner avers by reason of the facts aforesaid that the said road was and is a public road of said county.” The demurrers to the petition were overruled, and the trial resulted in a verdict for the plaintiff. The defendant excepted to the overruling of the demurrers and its motion for new trial.
"The question as to whether a public road might come into existence by prescription has been before this court several times; and in the case of Southern Ry. Co. v. Combs, 124 Ga. 1004 (53 S. E. 508), it was held, that, within the meaning of the law requiring certain precautionary acts to be done by railroad companies and their engineers at points where railroads crossed public roads — commonly called the blow-post law, — the term 'public road or highway’ was not confined to one which had been laid out and established by the county authorities by regular proceedings, but included highways in any one of four ways: (1) by legislative act; (2) by formal proceedings by the county authorities establishing it; (3) by dedication; (4) by prescription.” McCoy v. Central
We think the allegations as to the use of the road by the public, and its work by the authorities of Coweta County, are sufficient to show its character as a public road, as against demurrer. If the crossing where the injury occurred was a public crossing, then the petition set forth a cause of action, and the demurrer was properly overruled. The petition in paragraph 6 alleged that the crossing “is a public crossing,” and then alleged the duty of the defendant to erect blow-posts, and its failure so to do. The demurrer to this paragraph was properly overruled. The allegation that the engineer in charge of the train was negligent in that he failed to keep a constant and vigilant lookout along the track ahead of his engine at the time and place the plaintiffs husband was killed, and while said engine was approaching the crossing on which the injury occurred, and that he failed to blow his whistle to warn plaintiffs husband of his danger, is not subject to a demurrer that it is vague, uncertain, and indefinite or that it states á mere conclusion of the pleader. If this crossing was a public crossing as alleged, the engineer was under a duty placed on him by law to blow his whistle on approaching it. If it was only a private crossing,, ordinary care might require that the defendant be on the lookout in approaching it, and have his train under control to avoid doing an injury to a person who might be on it. Louisville & Nashville R. Co. v. Arp, 136 Ga. 489 (2) (71 S. E. 867). A careful consideration of the allegations of the petition shows that it is not predicated on the theory of this crossing being a private crossing. The special demurrers were properly overruled.
Will the facts stated above support a finding that this crossing was a public crossing? The crossing itself has been there at least thirty-five years. It was originally established and used to afford ingress and egress to those farming the land in the bottoms to the west of the railroad. It was a “farm road” or a “field road.” It does not appear that the road as originally used, which called the crossing into existence, is now being maintained,.or that such road ever acquired the character of a public road. Twenty years use by the public is insufficient, alone, to establish the character of the road as a public road, unless some act is shown to have been done by the proper county authorities, indicating its recognition as a public road. Louisville & Nashville R. Co. v. Hames, 135 Ga. 67 (68 S. E. 805); Penick v. County of Morgan, 131 Ga. 385 (62 S. E. 300). The road which is shown by the evidence to have been used as a public road, being the road which parallels the railroad on the east, has been there only fourteen years. As to such road, no establishment by prescription has been shown; nor does the fact that one half mile of such road was worked by the county authori
In Savannah, Florida & Western Ry. Co. v. Gill, 118 Ga. 737, 748 (45 S. E. 623), it was said: “In reference to the length of time in which a road must be used by the public as a highway in order to establish a prescriptive right to it as such, most of the courts hold that it must be used for a period of time conforming to that necessary to establish title to real estate by prescription.” It was- said in the McCoy case, supra, that the evidence-to show that such road has been accepted by the county authorities- “ should be such in character and-, extent as to clearly indicate such acceptance,”, or “in such manner-and to such an extent as to show an acceptance-by them.” Judge Beck further said: “It is enough if, in addition to such user for that time, there should have been acts of -the county authorities of the character and to- the extent above stated.” (Italics ours.) “One swallow proveth not that summer is near,” is an old saying. We will not attempt to say that the one working of the road one half mile to a private, house, at the time and in the manner in which it-was done, would-not, under other facts, be sufficient to show an-acceptance by the county au
Judgment reversed. Broyles, G. J., and MacIntyre, J., concur.