25 Ga. App. 835 | Ga. Ct. App. | 1920
This is a suit against a railroad company for damages on account of injuries alleged to have been received in a runaway occasioned by the negligent manner in which the defendant’s ears approached a road-crossing. None of the acts of negligence set forth
“Under the code a declaration-which-has all the requisites to make it good and sufficient in substance, save that it omits to allege some fact essential to raise the duty involved in the cause of action which the pleader evidently intended to declare upon, is amendable by supplying the omitted fact at any stage of the case.” Ellison v. Georgia R. Co., 87 Ga. 691 (7) (13 S. E. 809); Atlanta, Knoxville & Northern R. Co. v. Whitaker, 115 Ga. 644 (42 S. E. 56). Thus, while the petition as ¿led was defective in that no facts were plainly set forth such as would impose upon the defendant the duty of anticipating the presence of travelers at the particular place where the injury occurred, the omission being an amendable defect and therefore not such as a verdict would fail to cure or such as would authorize a motion in arrest of judgment, it did not render the petition subject to be dismissed on motion. Brown v. Georgia, C. & N. R. Co., 119 Ga. 88 (1) (46 S. E. 71).
2. Where a runaway, resulting in injury to a plaintiff, is brought about by the negligent running of a locomotive and train, in approaching a road-crossing, at a place where it was incumbent upon the defendant to anticipate the presence of travelers, the efficient proximate cause of such injury is the negligent conduct of those operating the cars, and not the fright of the animal. Southern R. Co. v. Tankersley, 3 Ga. App. 548 (60 S. E. 297).
3. While the special demurrer was good as to the first allegation of negligence, and while, as indicated, the petition was otherwise imperfect, it nevertheless set forth a cause of action and should not have been dismissed on motion.
Judgment reversed.