57 Ga. App. 674 | Ga. Ct. App. | 1938
Lead Opinion
The petition of James Sewell, the plaintiff, alleged, paragraph 14: '“That on or about March 21, 1936, petitioner was riding in a truck of the Capital Freight Lines driven by a young man named Mullins. Said truck was being driven northward on Powell Street in the City of Atlanta, said State and county, and when the said truck approached the south entrance of the railroad viaduct on said Powell Street, the truck was stopped, and petitioner and the driver got out and looked to see if the truck would clear or pass under the viaduct, and seeing that the top of the truck would clear the overhead beams of the viaduct
Paragraph 18c: “That said viaduct or bridge and underpass were constructed by defendants in the dangerous condition set forth in the petition, and have been since said date of construction maintained by defendants in said dangerous condition set forth in said petition." Paragraph 18d: “That the said underpass is a part of said Powell Street, and said Powell Street, over which said viaduct or bridge was and is constructed and maintained, is not a State road and has never been designated by the State Highway Department as a State road or State-aid road, and is not a county road within the meaning of the act of the General Assembly of Georgia approved August 23, 1927 (Georgia Acts 1927, page 299), and said act has no application to said viaduct or bridge and underpass, and neither said State Highway Department nor said board of commissioners of roads and revenues of said Fulton County, Georgia, have any jurisdiction as to said viaduct or bridge and underpass under the provisions of said act and have never had. Said viaduct or bridge and underpass were constructed a number of years prior to 1927." Paragraph 18e: “That the said railroad tracks of defendant cross over said Powell Street by means of said viaduct or bridge. Powell Street is approximately 4 blocks long, running north from Fair Street to Decatur Street.” Paragraph 18f: “That said underpass is approximately 200 feet long and there are approximately 12 railroad tracks crossing over said underpass at said point." Paragraph 19g: '“That, according to an agreement dated July 22, 1904, of defendants with the City of Atlanta, touching and permitting the construction of said viaduct and underpass, the underpass was to have a minimum clearance between the surface of the roadway (Powell Street) and the superstructure of eleven (11) feet. The defendants failed to construct said viaduct and underpass with said clearance
This cause was sent to the jury on the theory that it is the duty of all railroad companies to "keep in good order, at their expense, the public roads or private ways established pursuant to law, where crossed by their several roads, and build suitable bridges and make proper excavations or embankments, according to the spirit of the road laws.” Code, § 94-503. (Ga. Laws, 1838, Cobb 956.) There are many cases where the facts stated in the petition may be of such a character as to warrant the judge in deciding as a matter of law that “the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant’s negligence.” (Code, § 105-603). A failure to exercise such care is negligence which defeats his right to recover. This is not such a case. Here the underpass through which the plaintiff was seeking to traverse is "approximately two hundred feet long and there are approximately twelve railroad tracks over said underpass at said point.” As constructed, it was ten feet four inches at the south end (the point where the truck entered), and nine feet five inches at the north end (the point of exit), notwithstanding the fact that the agreement of the defendants with the City of Atlanta called for a clearance of eleven feet. Tinder the allegations of the petition, if the viaduct had been constructed according to this agreement, or if the clearance had been the same at the exit as it was at the entrance, the injury would not have occurred. When the plaintiff approached the south entrance of the viaduct the truck was stopped and he got out and looked to see if the truck would clear or pass under the viaduct, and seeing that the top of the truck would clear the overhead beams of the south end (the point of entrance) of the viaduct about eight inches and assuming that it would clear the north end (the exit), since it cleared the south
The conduct of the plaintiff as set forth in the petition indicates that he was on the alert, and if he should sustain the allegations of his petition as amended by competent evidence, the jury might find that though he made a simple mistake in estimating distances, yet nevertheless he was in the exercise of ordinary care. “In driving or passing under objects, the most careful and prudent man frequently overestimates the height of the object. For example, hats are knocked off and faces scratched by limbs overhanging the road on account of parties overestimating the height thereof. Many a careful, cautious farmer has had a close call and been injured when driving into a barn door. It is easier to hear noises and see objects than to measure and estimate distances,” Bush v. Jenkins, 128 Ark. 630 (194 S. W. 704). Thus we think that the facts pleaded, which are admitted for the purpose of demurrer, if proved on the trial exactly as alleged, would authorize, but not require, a recovery. If the danger arising from a defect in the opening left for travelers between the surface of the highway and the overhead beam of the viaduct is obviously of such a character that a person in the exercise of ordinary care would not attempt to pass through the same while riding in a truck under the circumstances described in the petition — or in other words, if such an attempt would of itself plainly and clearly amount to a want of ordinary care and diligence, the court may so decide it as a matter of law. But while such a traveler is charged with the assumption of the ordinary risk of attempting to pass through such an opening, yet he does not assume the danger occasioned by the defect in the construction of the underpass opening, which de
The instant case is distinguishable from Steele v. Central of Ga. Ry. Co., 123 Ga. 237 (51 S. E. 438), in that in the Steele case the plaintiff’s witness testified that he thought “as a matter of fact it would be apparent to an ordinarily prudent man coming down the street on top of two bales of cotton, [as the plaintiff was riding], that it was dangerous to undertake to go under that subway. It would be apparent to a man of ordinary observance.” In the Steele case the plaintiff testified: “I had only been under that subway one time. . . I had seen the bridge and knew it was there. . . I had seen the bridge frequently and was familiar with the building of county bridges. . . I do not know that the bridge is in sight [from my position on the cotton] fifty or seventy-five yards up that road. It might be; I did not look to see.” The instant case is also distinguishable from Echols v. Atlanta, Birmingham & Coast R. Co., 45 Ga. App. 609 (165 S. E. 484). In the Echols case the majority of the court sustained the demurrer to the plaintiff’s petition basing their finding on the Steele case, supra, and
Paragraph 18a of the petition is as follows: “It is alleged that said construction and maintenance of said viaduct and underpass created a dangerous trap in said street and highway which was liable and likely to trap and injure travelers upon said street and highway as was done in this instance. Petitioner alleges that it was the duty of the defendants in constructing and maintaining said viaduct and underpass to so construct and maintain them as not to create said dangerous trap in said street and highway thereby making said street and highway unsafe for the traveling public.” The defendant demurs to the first sentence of this paragraph upon the ground “that the said allegation is a conclusion of the pleader and constitutes matter prejudicial to the defendants.” The defendant further demurs to the remainder or second sentence of the said paragraph upon the ground “that the allegations therein contained are argumentative and constitute a conclusion of the pleader and allegations prejudicial to the defendants.” Having ruled with reference to the general demurrer that, under the facts as alleged in the petition, the jury had the right to say whether the underpass or viaduct, as it was alleged to have been constructed, was negligently done, and to further pass upon the question as to whether the underpass was “a dangerous trap,” the general averment in this first sentence of paragraph 18a will be construed to have reference to the special facts pleaded, and as the facts upon which this averment is based are set forth in the petition, the general averment is not subject to this special demurrer. Fuller v. Inman, 10 Ga. App. 680 (6) (74 S. E. 287).
Paragraph 18 of the petition as amended is as follows: Petitioner alleges, “that the driver of the truck and petitioner did not know that the underpass was narrower vertically at the north end of the said underpass, that it was nob perceptible bo- said driver and petitioner as they proceeded through said underpass on mid occasion (Italics ours) and in the premises the petitioner and said driver were without fault or negligence.” The defendant demurred to the italicized part of this paragraph upon the ground that the allegation therein contained is a conclusion of the pleader. This demurrer is without merit. Cedartown Cotton Co. v. Miles, 2 Ga. App. 79, 82 (58 S. E. 289); Austin v. Central of Ga. Ry. Co., 3 Ga. App. 775 (61 S. E. 998); Charleston & Western Carolina Ry. Co. v. Boyd, 5 Ga. App. 137 (62 S. E. 714); Charleston & Western Carolina Ry. Co. v. Lyons, 5 Ga. App. 668 (63 S. E. 862). Paragraph 19g is as follows: “That, according to an agreement dated July 22, 1904, of defendants with the City of Atlanta, touching and permitting the construction of said viaduct and underpass, the underpass was to have a minimum clearance between the surface of the roadway (Powell Street) and the railroad superstructure of eleven (11) feet. The defendants failed to construct said viaduct and underpass with said clearance of eleven (11) feet, the clearance, as said viaduct was constructed was ten (10) feet four (4) inches at the south end, and nine (9) feet five (5) inches at the north end; and petitioner charges negligence against defendants in failing to construct said viaduct with a clearance of eleven (11) feet as per defendants' agreement with the City of Atlanta. If said viaduct and underpass had been constructed with said clearance of eleven (11) feet, the truck on which petitioner was riding on said occasion would not have sustained said injuries.” This paragraph is demurred to on the grounds that the allegations
Judgment affirmed.
Rehearing
ON MOTION EOR REHEARING.
There being no allegation that the underpass was dark, we presume that the judge in the court below decided the case on the presumption that the underpass was not dark; and if the underpass was not dark, the facts alleged in the petition set forth a cause of action, and the jury might find, upon
Rehewrmg denied.
Dissenting Opinion
dissenting. In my opinion, the petition, properly construed (most strongly against the plaintiff), shows that the operator of the truck, in which the plaintiff was riding, and the plaintiff, by the exercise of ordinary care, could have avoided the consequences of the defendants’ alleged negligence. This being true, it follows that the general demurrer to the petition should have been sustained and the petition dismissed.
