39 Ga. App. 716 | Ga. Ct. App. | 1929
Milton McCombs, a minor nine years of age, by
The court sustained certain special grounds of the railway company’s demurrer, and the plaintiff excepted. The exceptions then brought were considered by this court in the decision reported in 38 Ga. App. 429 (144 S. E. 137), where it was held that the trial court did not err in requiring the plaintiff to supply the information demanded by the demurrer. Direction was given, however, that the plaintiff be permitted to amend his petition accordingly at the time the judgment of this court was made' the judgment of the court below.
The demurrer called for allegations as to whether or not a separate walkway for pedestrians was maintained on the bridge. When the case was again considered in the court below, the plaintiff offered an amendment wherein he averred that at the time of his injury he was crossing upon the upper or northern side of the bridge, and that this portion of the bridge had been used by pedestrians generally, as he was then using it, ever since the bridge had been erected by the railway company; that while there was no walkway on that side of the bridge, it was situated in a thickly and densely populated portion of the City of Rome, and that pedestrians in large numbers when crossing the bridge would walk upon the upper or northern portion thereof, as the plaintiff was doing at the time of his injury. The amendment further alleged that there was a walkway on the southern side of the bridge, but that this was used mainly by pedestrians who used the south side of Calhoun Avenue, and that pedestrians who used the north side of this avenue crossed the bridge by passing along the upper or northern portion thereof; that this had been the custom and practice of the public generally for a period of fifteen years, and that the defend
In the original petition it was averred that the bridge was about fifteen feet in width and approximately sixty feet in length, constructed of wood, with banisters on each side four feet high; and that as the plaintiff was immediately above the road-bed and track of the railway company, a locomotive engine approached the bridge, and that “just as the smoke or exhaust stack of said locomotive engine approached the northern part of said bridge, said engine gave a quick, sudden, powerful, and unusual and unnecessary exhaust from said smoke or exhaust stack, and emitted and threw forth, out and over the top of said bridge, a great volume of smoke, dust, and cinders, completely enveloping the top and floor all around your petitioner with a great volume of smoke, dust, and cinders, said exhaust of said smoke, dust, and cinders from said engine temporarily blinding your petitioner and knocking him back to about the center of said bridge, completely covering up and obscuring [him?] from the vision of any one in said street; and while your petitioner was enveloped in said cloud of smoke on said bridge the other defendant herein, Eugene Grace, driving an automobile up and on said bridge from towards the east and going towards the west, ran into your petitioner while he was so enveloped in said cloud of smoke, dust, and cinders, and knocked your petitioner down with the automobile which he was driving, ran over him, and seriously injured him, as hereinafter set forth.”
The allegations of negligence with respect to the railway company were as follows:
(Paragraph 16 of the petition) “Petitioner charges and alleges that the engineer, whose name to petitioner is unknown, who had said engine and locomotive of the defendant railroad company
(17) “Your petitioner shows that as a member of the general public and having the right to the use of said bridge, and said defendant’s agent, as aforesaid, knowing, or by the exercise of ordinary care and diligence could have known that your petitioner was walking along said bridge, that it was the duty of the defendant railroad company to use care and caution and not recklessly, negligently, and carelessly cause said engine to empty its exhaust and pour forth said volume of smoke and cinders in the face of your petitioner, blinding him and enveloping him in said volume of smoke, when as a member of the general public he had the right to the use of said street, and in walking across said bridge; that if-said engineer had not .caused said engine to emit said great volume of smoke, cinders, and dust, and completely envelop him
As to the other defendant, Eugene Grace, the petition alleged:
(Paragraph 13) “Petitioner charges the defendant Eugene Grace was negligent in driving his said automobile into and through said volume of smoke, when your petitioner was enveloped as aforesaid, without stopping his said automobile until said smoke had cleared away; that the defendant Eugene Grace knew that your petitioner was on said bridge before he drove upon said bridge and before petitioner was enveloped in said cloud o£ smoke, and that it was negligence in the defendant Eugene Grace in running his said automobile into said cloud of smoke and striking and injuring your petitioner as aforesaid.
(14) “That it was negligence per se in the defendant Eugene Grace in driving his said automobile in and over said bridge at said high rate of speed, in that it is a violation of the municipal ordinances of the city of Rome to operate an automobile on and over and across a bridge, and within the corporate limits of the city of Rome, at a greater rate of speed than ten miles per hour.
(15) “That the defendant Eugene Grace is guilty of negligence per se, in that at the time he ran his said automobile along and over said bridge he was running said automobile at a greater rate of speed than ten miles an hour, in violation of the penal automobile statutes of the State of Georgia which prohibit the operation of a motor-vehicle over a bridge on a public road of the State of Georgia, at a greater rate of speed than ten miles per hour.”
That the petition set forth a cause of action would seem to be settled by the decisions of this court in Bonner v. Standard Oil Co., 22 Ga. App. 532 (96 S. E. 573); Southern Cotton Oil Co. v. Wallace, 27 Ga. App. 415 (108 S. E. 624). While the railroad company had the right and duty to carry on its usual and necessary business notwithstanding its tracks were situated under a bridge over which pedestrians and automobiles were constantly traveling, it could not unnecessarily endanger the safety of such travelers
But even if the plaintiff should be considered as a trespasser or as being at a place where he had no right to be, it still can not be said that the company violated no duty of diligence toward him. Where the circumstances are such that the employees of a railway company in charge of one of its trains are bound on a given occasion to anticipate that a person may be in a position of danger with respect to the track and the operation of the train, they are under a duty to take such precautions to prevent injuring him as will meet the requirements of ordinary care and diligence, and this rule may be applicable even in the case of a trespasser, where he is using the property of the railway company in accordance with
The allegations of the petition do not show conclusively that the negligence of the defendant Grace was the sole proximate cause of the plaintiff’s injuries, but it sufficiently appears as against demurrer that the negligence of the railway company was a contributing factor. It is averred that the defendant Grace knew that “petitioner was on said bridge before he drove upon said bridge and before petitioner was enveloped in said cloud of smoke;” but it does not appear that the plaintiff at that time was in the path of the automobile, or that he would necessarily have been struck thereby except for the negligence of the railway company, which, according to the other allegations, blinded the plaintiff and knocked him back to the center of the bridge, “completely covering up and obscuring [him] from the vision of any one in said street,” and that he was struck by the automobile while thus enveloped “in said cloud of smoke on said bridge.”
We have carefully examined the several decisions cited by counsel for the railway company, and can not agree that this is one of those “plain and indisputable cases” in which the question of what was the proximate cause of the plaintiff’s injuries should be determined by the court on demurrer, but are of the opinion that upon proof of the averments of the petition the plaintiff would be entitled to have the case submitted to the jury. Compare Southern Ry. Co. v. Webb, 116 Ga. 152 (42 S. E. 395, 59 L. R. A. 109); Ga. Ry. & Power Co. v. Ryan, 24 Ga. App. 288 (100 S. E. 713); Spires v. Goldberg, 26 Ga. App. 530 (106 S. E. 585); Letton v. Kitchen, 37 Ga. App. 111 (139 S. E. 155), affirmed, 166 Ga. 121 (142 S. E. 658). Furthermore, did not our former ruling in this case necessarily adjudicate that the petition set forth
As shown in the above statement of facts, paragraph 16 of the petition alleged in effect that the engineer and the fireman saw or by the exercise of ordinary care should have seen the plaintiff as he was walking over and along the bridge, and that the engineer and the fireman knew or should have known that the exhaust from the engine would envelop the track with smoke, dust, and cinders, covering the plaintiff with smoke and making it impossible for him to be seen as he walked on the bridge, and that under such conditions the engineer and the fireman knew or should have known that the plaintiff was likely to be run into and over by some automobile. The defendant railway company demurred specially to these averments upon the following grounds:
“ (a) That said averments are vague, indefinite, and uncertain, in that it is not alleged whether defendant’s agent actually knew that plaintiff was walking on said bridge, or that he could have discovered same by the exercise of ordinary care and diligence.
“(b) That it is not alleged, and said averments are insufficient to show, whether the plaintiff relies upon actual knowledge on the part of defendant’s agent, or merely implied knowledge.”
We are aware of no rule of law which would have required the railroad employees to look upward from the engine to see if there were persons upon the bridge, and, in the absence of some provision of law making it their duty to do so, the allegation that they either saw, or ought to have seen the plaintiff was insufficient to show negligence on their part. Otherwise, however, as to the
While the allegation that the engineer and fireman saw or should have seen the plaintiff upon the bridge was ineffectual and should be disregarded, the demurrer thereto made the mistake of including in the attack other averments of the petition which were not subject to the criticism made, and so, because of its own imperfection, should have been overruled. Southern Ry. Co. v. Phillips, 136 Ga. 282 (71 S. E. 414); Parrish v. Central of Ga. Ry. Co., 36 Ga. App. 133 (135 S. E. 762).
The proffered amendment sufficiently met the special grounds of the demurrer which were considered by this court upon a former hearing. There was no merit in any of the other special grounds of the demurrer.
Judgment reversed.