129 Ga. 842 | Ga. | 1908
Lead Opinion
1. In an action based upon the negligence of the defendant, Avhieh it is alleged resulted in the killing of a mule, it is not sufficient to allege the negligence in general terms; and it was error for the court to overrule a special demurrer calling for the particulars of the-alleged negligence. Russell v. Central of Ga. Ry. Co., 119 Ga. 705; Macon, Dublin & Sav. R. Co. v. Stewart, 120 Ga. 890.
2. Although the mule alleged to have been killed was, when struck by the defendant’s train, at a point between the bloAV-post and a public cross
Judgment reversed.
Concurrence Opinion
(specially concurring as to first headnote). The case of Macon, Dublin & Savannah R. Co. v. Stewart, 120 Ga. 890, was decided by six Justices, and is controlling. The material allegations, under consideration in that case were substantially the same as those-made in the petition in the presentíase. The first headnote in that case is as follows: “A petition to recover damages for the killing of two mules by a railroad company, which in general terms alleged that the animals were killed by a train of defendant, ‘in a careless and negligent manner, running over said mules in the field of petitioner . . 'and on the tracks of said railroad company,’ should, in the absence of amendment, have been dismissed upon special demurrer, on the ground that it did not set out any' specific acts of negligence. Seaboard Air-Line Ry. v. Pierce, 120 Ga. 230. See also Central Ry. Co. v. Weathers, 120 Ga. 475.” The eases cited in the headnote just quoted were each decided by five Justices, and are not controlling. I do not think the doctrine recognized in the headnote in the Stewart case is sound, but, being controlled by the ruling there made, I am obliged to concur in the ruling by the majority in the case at bar, as: announced by Mr. Justice Beck in the first headnote.