*1 Furthermore, may prosecute “No suitor two actions time, same cause, against courts at the for the same (Code party” 3-601); same and where the chose to § relinquish right exception judgment his to the in the former by filing present suit suit tendering before bill his of ex- ceptions the former he cannot judgment, complain now his cause of action is barred judgment the former against him, which stands unreversed. opinion
I am of Judge Court of Athens did not in sustaining plea err judicata of res and in dismiss- ing plaintiff’s in that Judge suit court. Worrill concurs in my expressed view of this case as in this dissent.
34609. ATLANTIC COAST LINE RAILROAD
COMPANY et al. v. LAYNE. Rehearing denied July July Decided 7, 1953 1953. 30, *2 Marshall, Greene, Hugh Baird & B. Neely, Burgess, plain- tiffs error.
James Venable, R. John L. Respess, Jr., Morgan, Hubert C. contra. P. J. We exceptions shall first deal with the
Gardner, pendente judgment lite to the overruling the demurrers the de fendants. Under the amendment to petition, after the re mittitur judgment was made the below, the court we are of opinion petition out a set cause of See di action. vision 1 of opinion the court’s when the case here before, particularly excerpt from that opinion: “The intention to dedicate need not express be shown an declaration to that *3 effect. Such may intention be inferred from acquiescence an the owner in the use public. property his But the use must be of such a character as clearly indicate public that the accepted has the dedication property public to the use. acceptance The need not be express, way but if the be used and worked or treated authorities as a part system public highways a place way where the claimed, is length and this is continued 'for a of time that private accommodation rights might and materially interruption affected enjoyment,’ the dedication to complete use against as the owner of fee.” Atlantic Coast (58 Line R. Co. v. 81 Sweatman, Ga. 269 S. 2d citing Mayor E. 553), &c. Madison Booth, v. 609; 53 Ga. Parson v. Trustees, 44 etc., 529; Ga. Ga. Company Railroad v. Atlanta, (5 256); 486 S. E. Kelsoe Oglethorpe, 120 Ga. (48 366). S. E. We are of the opinion and so hold that the overruling did not err in court petition demurrers to the as amended.
We come next to consider the motion for new trial. general grounds We will consider the first. We deem it advisable outset, allegations at the to set forth the in count 2 for the reason grounds, well general as covering the brief throughout the and the evidence allegations and grounds, these special not set We will forth discussed. thereto are pertaining thereto, quoted we since the amendments and paragraph parts omitting formal and The petition, hereinbefore. as follows: 6, reads paragraph Company Railroad defendants, Coast Line Atlantic
“1. The Company, lessee Railroad & Nashville and Louisville having an officeand Railroad, corporations, are railroad Georgia through railway in and line of operate and maintain a agent, and county. and State Banking Gompany, Georgia Railroad & defendant, “2. county, an through said and of railroad in and has owns line county. and in said office,agent place and of business State damaged petitioner’s and injured “3. The defendants have daughter, Mary Joyce, $25,000. in the sum of February Mary while evening 20, 1948, On the Joyce,
“4. crossing the railroad tracks of the de- the act of mainline county, County Atlanta in Fulton and fendants between county, at point one mile west Decatur and Decatur commonly Crossing’, what is over known as the ‘Meads Station injuries, permanent personal and received severe and fell several causing hospitalized her for over three months which she is still under medical care. Crossing’, ‘Meads over
“5. Petitioner shows that said Station used tracks now used been continu- defendants’ said has ously by these from [way] over tracks northerly College streetcar side thereof to station on southerly thereof, Avenue and environs side same has years continuously used more than 20 with de- so acquiescence and fendants’ consent. *4 specifically
“7. Petitioner shows and un- that under mandatory provisions 94-503, der the of Code section it said, duty ‘keep good order, in their expense,’ defendants at way crossing and such foot over their said railroad tracks. “8. Petitioner further shows the defendants’ servants and employees, particularly in of the and those maintenance upkeep right-of-way, defendants’ and and tracks have failed neglected keep portion crossing and over the rail- of said repair good order, placed in and but have
road tracks a state placed to be between cross and caused loose rocks ties the rails point way at this road said tracks where crosses and have keep no effort in proper made same a safe and condition. Peitioner “9. defendants have failed and are shows that fail- ing neglecting comply duty and imposed with the on them by keep way said Code section 94-503 to and said road cross- good in ing over their order repair, tracks and their expense, at thereof, and as result petitioner, attempting to use said crossing to southerly cross from the northerly side, side to the continuously same was used and for which it was established, stepped upon said loose rocks and was caused to stumble, footing lose her trip and the northern-most rail north, tracks violently of defendants and caused to fall and injured alleged to become herein. At Mary Joyce
“10. the time sought to cross defendants’ said over crossing tracks said foot nearing evening it was and the loose stones readily visible, were not and she would not have and tripped stumbled on said rail fallen and had she not been caused to by stepping stumble on loose rocks which rolled under her feet. Petitioner rocks, necessary
“11. shows to re- and strengthen the tracks and road inforce bed of at defendants point packed tamped should ground and into the so that same would not be persons loose and roll stepped when thereon.
“12. Petitioner shows that said loose either placed rocks were between said rails and ties defendants or that the defendants’ agents and servants upkeep repair and de- tracks, right-of-way fendants’ road bed and knew thereof exercise due should care have known thereof. “13. Petitioner negligence defendants’ shows the fol- particulars lowing proximate the direct cause of her in- juries, to wit:
“(a) failing neglecting keep crossing said at Meads good Station order in violation Code section 94-503 which mandatory makes negligent order, defendants were per se in failing neglecting comply with said statute. *5 stones be- and rocks placed causing to or
"(b) placing In said at their railroad tracks on ties and cross rails tween or otherwise same tamp the or pack failing to crossing and loose not become they would that and so secure making same upon. stepped roll when and stones rocks and maintain keep and
“(c) failing to In crossing and said tracks defendants’ rails on and between ties from keep same failing and in and condition state secure crossing said maintain keep and failing loose, and being order and roadbed tracks defendants’ and over between between the rocks prevent and as to repair so state and peti- rolling where being and from loose and rails the cross ties stepped thereon. tioner “ crossing in a safe maintain said (d) failing keep and condition. negli- defendants’
“14. Petitioner shows reason.of to fall daughter, caused Mary Joyce, his gence aforesaid, lacerated, torn, and bruised, sprained leg her left and knee and her left big scar on leave a large cut therein as to place so and knee joint her left and to cause leg shaped ‘X’, like an knee and and still pain much stiff; he shows she suffered and hospitalized remain compelled to therefrom, suffers that she by doctors; and he being months, and treated three is still over in- received she further that when she fell as aforesaid shows and still injuries from which she suffered ternal in her abdomen suffers.” fifty containing approximately lengthy, quite
The evidence is plain- for the give it in detail. The evidence We will not pages. through officer, Decatur, a traffic tiff shows: question passageway crossing in or over directed traffic years; during this time years—almost 30 than 20 more over the passageway thousands used this children school morning and schools; that and going to from railroad Decatur, days policeman under school afternoon on traffic, city authorities, directed this direction continuously either the railroad track living side of adults night; question day both and that passageway used passageway crossing num- approach or north on the in approaching use stepping stone blocks for bers of stones leaving railroad the railroad tracks tracks had been placed persons using crossing. for the use of The evidence city years longer shows that the for 20 kept authorities had grass shrubbery up mowed trimmed to the end of the railroad in order *6 ties this clear for use the of children and crossing school adults in at point. The “work- ing” the traffic passageway of as to this and the use passageway crossing and had been by continued direction of the city for authorities more than 20 years, stated as hereinabove. shows, The evidence further by testimony introduced both for the and for the defendants, that there nowas barrier erected passageway by across this the railroad company, no warning signs danger and no part contentions of the company railroad “Dangerous, private that was property,” or keep “To off.” The evidence defendants reveals that other crossings of a similar character were, some of them barri- and some caded, of them marked with warning signs. There is evidence that express there was no by dedication the defend- City ants to the of Decatur passageway of this or crossing, and acceptance of it as by city. only The rel- evidence ative crossing to this becoming public crossing, a meaning law, implication by being its public used worked or public treated part system authorities of a public highways in the place where the passageway is claimed and continuously used for period years. than So, more allegations this be true as shown of the petition, sup- ported by the evidence—and we are opinion they do crossing —the passageway or now under consideration stands on footing on the same as other highways streets and inter- secting city railroads within the limits of the of Decatur. being provisions
This so, 94-503, Code prevail. § That section reads: companies “All railroad shall order, expense, at their private roads or ways estab lished,' pursuant law, where crossed their several roads, bridges build proper suitable and make or excavations em according spirit bankments road laws.” ques The tion for is, determination did the defendants in the instant comply provisions with the of the Code section immediately quoted? hereinbefore inquire Let us as to that. or not the to whether all the evidence as not detail
We will
of the Code
complied
provisions
failed or
with
defendants
number
say
á
Suffice
consideration.
under
section
showing that
railroad
introduced,
did no
photographs were
or
passageway
crossing in a
maintain this
act to construct and
reasonably
use.
manner make it
safe
The evi
part
dence
no effort on the
of the defendants
do so
discloses
they
consisting
ballast,
stone,
other than
did
of rock or
be
put
ties,
being
these
up
tween the railroad
rocks or stones
size
tamp
of a
did not
these rocks
fist.
across this
passageway
crossties; they
put asphalt
between the
did not
anything else there
far
shows,
so
evidence
in order to
passageway
make
safe for
use. On thei
contrary,
they
so,
shows
do
although
evidence
did not
the defendants
passageways
at
number
other
did,
similar
one, put
to this
asphalt
other materials sufficient to make
passageways reasonably
such similar
crossings.
safe as
*7
phase of
and comparing
immediately
the issue
be
fore us as to whether the
comply
defendants did
with
pro
section,
visions of that Code
defendants cite
number of
decisions, as
City
follows:
v. Georgia
Bkg.
Atlanta
&R.
Co.
of
(98
In this are endeavoring treat in issues they in which are order named in the brief of counsel for defendants error. In brief, in dealing with the conten judgment tion that the should be reversed general on the grounds, argument overlapping. particular phase brief and argument, counsel for the contend plaintiff should not recover because of her own lack of exercise ordinary protect care herself. It is clear that always this is question jury fact for to determine and their finding is be never disturbed unless clearly evidence is against so plaintiff question such a that no reasonable minds Usually, could differ on it. question, on this each case under its particular facts stands alone on its own bottom. Counsel for
682 this issue making the contention defendants, clear after Conaway cite: v. contention case, support
the instant (60 631); E. 2d Banks App. 97 S. Corp., 82 Ga. McCrory Stores (53 Atlanta, App. 79 Ga. 313 Authority Housing v. (65 App. S. Kroger Co., Ga. 195 595); v. 84 S. E. 2d McMullan (54 App. 320); 481 S. E. 2d Lynch, 79 Ga. 420); E. Ford v. 2d (57 680); App. S. E. 2d Co., 840 Hill 80 Ga. v. Davison-Paxon (175 App. Ga. 280 Company 49 Patrick, v. National Bellas-Hess (120 683); 402 E. App. Ga. S. 255); Avary Anderson, 31 S. E. (103 433); E. Realty App. S. Co., 25 Ga. 369 Lebby v. Atlanta Drug App. (145 502); E. Lane Barker, Ga. 734 S. Mills v. 38 App. (35 472); Tinley v. F. S. E. 2d Story, 72 Ga. 886 Stores v. (28 2d Moore v. App, 322); E. W. 390 S. Co., Woolworth 481). A read (74 careful Co., E. 2d Kroger 87 Ga. S. compared with the facts ing facts in those cases as distinguish involved, will principle and the instant case from the case. instant those cases special grounds next to embraced We come consider motion. within amended
Special ground is abandoned. excerpt from and attacks an forth Special ground sets that in order effect charge of the court to the negligence out upon recover the acts set she must to recover prove acts, not all the and that that she need petition, but one more of the acts. prove her sufficient it Would the court did not as erroneous because charge is attacked This negligence and that negligence, was based on charge that the case recovery had, that a could to be found order charge what was owed court failed to because the also case, slight care, or company in the whether by the railroad *8 recovery only gross there could be care, or whether dinary ground call in our defendants this negligence. Counsel con to contention. This to decision sustain attention facts case and the law merit under the of this without tention is thereto. applicable following excerpt excepts 3 from
Special ground crossing you “If find that this was dedicated for charge: by accepted De the authorities of use just given way under the rule I have then you, catur as
683 defendants in event it would have of the that you good it in order. If find that such maintain there was just I given you, you rule have then dedication, under the given law you evidence and the court has in look charge or kept and ascertain whether not the defendants said crossing they keep in whether failed good order or same in good order, you they keep if find that such crossing failed to order, good you in then wrouldlook to and the the evidence given charge in the court has and ascertain whether not plaintiff’s injuries were caused the defendants’ failure keep crossing good said order.”
It is argument contended for the of counsel defendants excerpt erroneous, virtually court as the made the company railroad an insurer. The charging court was but principles of law as held correct this court when this case (81 269). here before charged The simply court if passageway crossing had become a one implication dedication on the doctrine of jury if the should1 find under the evidence that the defendants had failed comply provisions with the 94-503, of Code would be en § titled recover. We have dealt with question hereinbefore in both division and opinion. division When we take excerpt in connection with the whole charge, this contention is without merit. Counsel for the authority cite no brief to their sustain this contention.
Special ground 4. Counsel ground1 contends shows error charge because court failed to Code 94-703. § charge While the court did verbatim, not section point fully. as a whole covered the authority cited coun for the defendant, Georgia sel Central Ry. Prior, Co. v. (83 application Ga. 536 E. 117), S. has no or force under the rec ord instant case.
Special ground complains following of the excerpt from charge you, gentlemen, court: “I if the plaintiff could have avoided consequences herself the defendants’ failure crossing good to maintain such order, you find that the defendants failed to
order, and after such failure arose and was impending, if did arise and could have been discovered the plaintiff, if she *9 herself of consequences to defendants’ the avoided have
could good the order, by in exer- crossing maintain such failure to plaintiff could not existed, then the ordinary care', if that cise recover.” al- for the reason that it is excerpt assigned on this
Error is only railroad to exercise or- leged the of the that it was crossing good in maintaining the dinary to care with reference petition several plaintiff charged in her the order, and that charge prin- the did the negligence and nowhere court grounds of duty to avoid the defend- regarding the ciple plaintiff’s of law duty to to plaintiff’s the avoid the negligence, but limited ants’ negligence respect violation of Code single ground with to charge whole, there When consider as is 94-503. we § charge. excerpts from the exceptions error in these to the complains following excerpt from Special ground 6 plaintiff neg that charge: you find, gentlemen, the “If the crossing public use and ligent, and that dedicated to such good crossing maintain such in the defendants failed to order, you negligence plaintiff was not if find the greater negligence the defendants in equal to or than the keep case, failing crossing good order, if such the to plaintiff ordinary care, and that the the exercise of not, could notwithstanding injuries herself, then alleged to have avoided the may negligent, she would extent, plaintiff, the some your duty recover, compare be entitled negligence the defend plaintiff and the negligence good repair, and balance failing ants negligence find that against the other, the one failing crossing in order was keep such the defendant in plaintiff would negligence plaintiff greater than damages jury diminish the recover, but the should entitled to contributing to negligence her plaintiff in proportion injury.” assigned excerpt on this follows: The defendants as
Error
jury,
effect
confused
court
contend
damages
they
give
charged
jury could
diminished-
negli-
defendants’
plaintiff’s failure
avoid the
spite of di-
giving
court did not make
words,
in other
gence;
upon
finding
damages dependent
minished
negligence, but
court
to avoid the defendants’
did not fail
gave
entirely and
each doctrine as
separated the two doctrines
proposition.
we come to the
separate
When
case,
assigned
whole, under the record of this
the error
is without
*10
for the
The citations
which counsel
refer
merit.
support
do not
instant case. Those
us,
contentions
(13
P. &
v.
87
6
Luckie,
are: Americus
L. R. Co.
Ga.
citations
(3) (25
Moore,
&
229
105); Macon,
E.
D.
S. R. Co. v.
99 Ga.
S.
Ry.
(30
460);
E.
Southern
Co. v.
In this connection
we call attention to certain cases cited
plaintiff
counsel for the
as follows: Macon & B. R. Co. An
v.
derson,
(49
121
666
791);
Ry.
Ga.
S. E.
Savannah F. & W.
Co.
Stewart,
v.
Special ground 7. It is contended that the court erred charging excerpt: charge “I you, negli gentlemen, gence means the absence of degree or the failure exercise the prescribed by of care charge you the law to be exercised. I plaintiff must have been in ordinary the exercise care, and meaning ordinary definition of care, applied her, just every prudent that care which man would exercise under the same or similar circumstances.”
There is no contention that principle is not correct only assignment law. error is that the court did not principle an additional of law. The defendants cite authority support this contention. See, connection, v. Griffin State, (190 183 Ga. Ivey 775 S. E. 2); Hall, App. v. 77 Ga. 350 (48 788); S. E. 2d Belvin Beard, (49 S. E. 546). 2d assignment addition this of error not meritorious when we view of the court aas whole. charged because the court complains
Special ground plaintiff favor of the “Gentlemen, find in if follows: charge you you, given I the court has which under that would such amount to recover would be entitled plaintiff pain suffering, mental physical and her compensate fairly having in injury, by reason by her any, endured if pain compensation to adequate view measure of defendants, suffering and fairness to also enlightened consciences damages, any, physical damage, when there is jurors. Elements impartial past future; pain, and mental suffering physical damage, are conditions. physical and other injury health says that gentlemen jury, she case, plaintiff in this “The approved by which this pain. There is no standard has suffered impartial enlightened consciences measured, except the can pain see sort the evidence and what You would look to jurors. *11 harsh, what; or mild or suffered, severe any, whether1 was she long it whether it has determine how you lasted, would then then future, de ceased, or whether it will continue give sum you her such both would as siring parties, fair to to injury re compensation be fair she you think would your enlightened meet sum would with consciences.” ceived, such in disagree the contentions of this We with quoted petition, that the which we have ground for the reason hereinbefore, allege pain suffering and the evidence does argued allegation. principle While of law in sustains ground Berry special Jowers, correct forth in is as set 59 this (5) (200 allegations E. App. 195), S. it does not fit the support or in thereof. petition the evidence No error is shown special ground. this complains Special ground 9 because the court refused to following excerpt requested writing: in charge the “I charge as plaintiff may under facts of case the you that this not re from the defendants there has been cover unless some violation duty plaintiff charge you and I a owed to that there duty you any plaintiff unless find that no violation was an say that said a invitee, that is to street was street of merely private and not pathway Decatur which time time.” used from to opinion request not a full and accurate In our this state- charge ment law under the evidence and the of the court charge portion covered a whole. The a whole as as request law, and based on which is sound our decision when previously. before See 81 Ga. 269. this case was this court special ground. no There is reversible error in Special ground complains refused because the court give following charge: charge you request written “I pathway the mere fact that a has been used as long twenty years longer objection or without is not sufficient duty without more make a user thereof an invitee (in would be owed this case the railroad com owner panies) keep premises good order for members public using it.”
Under the case, facts of this from standpoint viewed the charge of whole, request the court as a without merit.
Special ground complains of the failure of the court to charge you “I follows: that before the may any right show recover at all must first she show keep that the defendants had a the pathway across (if you fall) good tracks where fell find did she she order and charge you any duty this connection I that before would arise pathway pathway order must private way pursuant established as road to law. ways There several private are road way may pursuant be established charge you to law but I that under the you facts of this case are any not concerned with except method that of dedication and it is for to decide whether under the *12 proven given facts you charge and the law in there has been in fact a pathway public dedication of such a as road of the being of Decatur there justify no facts shown which a finding private way that a had been established. In other words, under the of you facts this case would be authorized to find that the defendants owed a pathway in good order you event that find said pathway that had been dedi public cated as a only road and in that event.” The court charged substantially the law as set out therein and assigned the error special ground in this is without merit. in the erred because court complains ground 12
Special charge: “I request to following written the refusing give complete use is not public to a a dedication charge you that the of the part on (1) An intention appear: things two until (2) An ac public use, and property his dedicate owner to use. such of the part public property the of the ceptance on dedicate the intention to charge I “In connection that effect. Such by express declaration an not be shown need by the owner acquiescence inferred from an may be intention public. the use must be property by But use the the of his public has ac- clearly indicate that the character as to public use. The property the of the cepted the dedication way be used express, but acceptance need not be if the part as a public authorities treated public worked way where is highways in the system public place aof length that the time and this is continued for a claimed might materially private rights public accommodation and enjoyment, dedication to interruption affected public complete against fee. How- use is as the owner ever relied establish the dedication must be such acts clearly purpose part indicate on the owner to a devote property personal doviinion over the his abandon property mere useThe use of one’s the same to definite period even for extended portion an by a small to a property a dedication of the not amount to time will clearly was an intention to dedi- appears there it use unless accepted by authori- dedication that this cate implication resulting express from the either in terms or ties (Italics ours.) way nature.” its maintenance general charge give did in the court most It is admitted but is contended language request, contained case, meaning kernel of the left out the whole the court language decision of this court when the contained did portion charge, the court here before. which not assign charge error, on which failure to is elementary charge court It is need not italics above. language request request in the exact in which the written requested principle substantially covered couched, read the of the court. When we whole the whole
689 is case, no reversible error evidence the applied to as ground. special in this shown erred in because the court complains 13
Special ground charge you “I request charge: following to give refusing to the in express been case there has facts under the that say you be to whether it would to dedicate shown tention by of such implied dedication the defendants been an there has you charge that a use. this connection I public property to by the may acquiescence inferred from intention to dedicate public use must be land the but the the use of his owner public accepted clearly indicate the to of such character as charge you I public use. In this connection dedication to public to acceptance such would have be shown im by express acceptance by city as either ordinance such property acceptance by the maintenance of plied as City of Decatur.” What we have authorities special 12 ground applicable with reference to here. This said is ground merit. special without is complains because the court erred
Special ground charge: you “I give following request charge refusing pathway in her that the has been plaintiff alleges petition way by municipal recognized a road accepted and as City Decatur and these authorities authorities keeping passable and im crossing, same have worked.on said charge you proof I burden of is on proving same. allegations by preponderance prove these of the evi plaintiff to plaintiff explained and if dence as elsewhere in has allegations you find from the evidence prove failed to City Decatur, municipal authorities of the that the that is charge thereof, accept did say path not officials passable it to and did not work on and did street improve way, it for use as a street or then in that not entitled would not be recover and event it would assignment find for defendants.” This your argumentative without merit for the ex error reasons ground special in our discussion pressed hereinbefore. Special ground complains court because the refused to following request charge: you “I give that when question you come consider to whether there has dedication of the any acceptance City of Decatur of the (if dedication) question you I pathway in find there was such charge you you find been an in order for that there has acceptance by implied of Decatur conclude must *14 City from the evidence that the authorities of the of De- pathway catur have maintained said or worked it aas (or way by or street treated it as a similar acts street or way) you and unless find from the evidence that the au- thorities of the Decatur maintained or worked of have said pathway then there acceptance path of said as a way street or and there would be no instance such the path of defendants to with the con- order, sequence it your duty would be in such to find case a verdict for the request defendants.” sufficiently The here by was covered general charge the ground and this merit. is without
Special ground complains the because court refused to give following the request charge: “If find from the evi that premises the condition of the of dence was character it could have been created negligence without fault on part defendants, of that is to say it could been have created by persons by outside water action, then under such circum it would plaintiff stances be incumbent on show the de knowledge had fendants of the condition or that the condition had length existed for such a knowledge of time that thereof presumed.” would be exceptions
The first, to this are, request that the was not substantially covered general charge, second: particular “Movants aver that the matter in issue to which the request written particularly adjusted was as to the duty was owed occupier an premises of for temporary conditions which could been persons caused or conditions not under the control occupier premises. In the instant plaintiff case did any not show defective resulting condition in wear or tear or pavement failure to maintain free of or things holes of such sort.
“The evidence plaintiff showed that stepped a ‘rolling stone’, and she did not know from whence it came. evi- dence also showed that this near a ditch and that stones were carried water from time to time over crossing. could have ballast rock made of crossing was one Since with rail- person wholly unconnected by some displaced company. road adjusted particularly contend that
“Movants all at not dealt with which was feature prejudicial and harm- charge was the refusal to so court and of one their basic de- deprived movants movants ful to was in the mere fact a stone case, wit: fenses may to fall was not have caused and this pathway part de- negligence on the to show itself sufficient defendants themselves proof absence fendants had been there such that the stone there or placed stone they knowledge had constructive time that should have length of it.” and removed existence of stone assignment error, the defendants cite support two Ry. Georgia brief: Central Co. Keating, decisions *15 (89 197). Boney Ga. 339 S. E. supra, City v. Dublin, assignment of we think that this error place, In the first do not required complete within itself because the court is brief to locate that through entire of evidence evidence search rely. place, In upon which the defendants the second ar- is place, In gumentative. the third the evidence the decisions upon rely negative. which In the instant case defendants positive. Of course there is the evidence is no evidence here “any resulting defective wear tear or condition or failure show pavement holes, things maintain a free of of such sort.” or years whole that for almost 30 gist situation is The any put any pavement or not safe material or did defendants crossing. passageway evidence or The method on safe long period they of time did during nothing this shows that whole between the crossties on the passageway ballast or rocks except put knowledge particular condition at this crossing. As or foreman or the super- reveals the section the evidence point, particular portion foreman the section traversed visor of passageway or crossing daily. almost railroad tracks over evidence that the condition of There which to fall was caused or could caused caused any any water action outside per- weather or outside passageway part were in The rocks were son. placed the defendants. The in Central
ballast there facts Ry. altogether from Keating, supra, Co. v. are Ga. different positive in the instant case. There was facts evidence Keating raking approach case that someone had done some at the bridge. to the There here. The evidence in is no evidence raking any the instant case the lack other reveals act. Boney City Dublin, evidence shows that there supra, v. an peeling being isolated a banana instance of left on the twenty-four forty-eight street for case, hours. In the instant the ballast placed rocks had been there twenty-four over years, with the super section foreman and the visor seeing of the section foreman having knowledge condition. request entirely correct, adjusted
A
must be
to the
adjusted
adjusted
pleadings,
evidence,
law,
and must
argumentative.
not
N.
See
Y.
Ins. Co. Thompson,
v.
Life
(178
E. 389);
S.
Mandell
Fulcher,
The court did overruling not err in the amended motion for a trial, new it, any viewpoint. we see from Judgment Townsend Carlisle, concur. JJ., affirmed. Rehearing.
On Motion
For
Counsel
contends on
motion
rehearing
that this court
does not deal
with the case of
Georgia
Atlanta v.
R. &
Bkg. Co.,
(98
83).