43 S.E.2d 576 | Ga. Ct. App. | 1947
The plaintiff alleged in his petition particular basal facts which give rise to the duty the defendant railway company was under to prevent injury to him or his property; and the petition alleged plainly and distinctly every substantive fact which is necessary in law to the maintenance of his suit based on actionable negligence. Held: The petition was not subject to the general or special demurrers urged.
The defendant filed general and special demurrers on the following grounds: "1. No cause of action is set out in said petition. 2. Because it appears that plaintiff was a trespasser and no wilfulness and wantonness is set out in said petition. 3. Defendant demurs specially to paragraph 4 of said petition on the ground it is too general, vague, and indefinite, it not being made plain therein whether plaintiff means to charge the said street referred to in said petition is a public street or is a private street and whether said street is on property of a municipality or property of this defendant. Defendant further demurs to said paragraph on the ground it is not shown that said street was dedicated as a public street. 4. Defendant demurs specially to paragraph 5 of said petition upon the ground it is too general, vague, and indefinite, it not being shown therein how or in what way said street had been used by the public and by employees of the railroads working in and around the Terminal Station. 5. Defendant demurs specially to paragraph 6 of said petition upon the ground it is too general, vague, and indefinite, it not being set out therein what `agents' and `officers' of this defendant had knowledge of the use by petitioner of said `street' to park his automobile and what `agents' and `officers' made no objection, there being nothing in said paragraph or petition to identify them."
The trial judge ruled: "The within demurrers coming on to be heard and after argument it is considered, ordered, and adjudged that par. 4 of said demurrer is sustained with leave to amend by Jan. 6, 1947. The remaining paragraphs of said demurrer are overruled."
The plaintiff then amended his petition in the following particulars: "1. By adding at the end of paragraph 5 of said petition the following words, phrases, and sentences, to wit: "That said use consisted of the general public passing over said street when traveling in automobiles from Marietta Street and Forsyth Street and other points north of the Terminal Station and traveling to Spring Street and other points south of the Peters St. viaduct. Said street had been used during said period by said employees, and by the public generally, having business with said railroad company, the United States mail service, and other places of business, in and around the Terminal Station, and it had been customary over said period for said street to be used as a thoroughfare *492 and also for parking purposes.' 2. By striking from paragraph 6 of said petition the following words, `the defendant's officers and agents,' and inserting in lieu thereof the following words and phrases, to wit, `all of defendant's officers and agents in Atlanta.'"
It is insisted by the defendant that the trial judge erred in overruling paragraphs 1, 2, 3, and 5 of its demurrer. 1. The defendant by its demurrer contends that the petition does not allege whether the alleged street was a private street or way, or, in contemplation of law, a public street in that it had been regularly dedicated as such by legal authority, or had been used as a public street for a sufficient length of time to become such a public street by prescription.
So far as the rights of these parties are concerned, it is not necessary that the street should have been a public street in either sense. If it was used by the public under circumstances as alleged in the petition, with the knowledge of all of the defendant's officers and agents in Atlanta, and without protest on their part, the law would impose on the defendant such a degree of care as was suggested by the particular circumstances. Texas P. Ry. Co. v. McManus,
The petition here alleged that the defendant railway company knew that the public was using this place as a travel thoroughfare and as a place for parking automobiles, and that the defendant kicked one of its freight cars into a sidetrack with such unusual and unnecessary force that the said car passed over the bumper block, crashed through said freight platform, over said street and into the side of the plaintiff's automobile parked on such thoroughfare. The petition alleged further that such acts constituted actionable negligence, which was in effect saying that a reasonably *493
prudent person should know that such acts would cause injury to a person traveling along or parking his automobile on such street or thoroughfare. Proceeding upon this theory, the petition alleged the purposes for which the public has a right to use such street for its benefit and showed that the street was being used for one of such purposes, to wit, the parking of an automobile thereon by the plaintiff. Home Laundry Co. v. Louisville,
Of course, there can be no negligence where no duty is due the person injured, for negligence is the breach of some duty that one person owes to another. It is relative and can have no existence apart from some duty expressly or impliedly imposed. Before negligence can be predicated upon a given act, some duty to the individual complaining must be sought and found, the observance of which duty would have averted or avoided the injury or damage. This duty, the violation of which constitutes actionable negligence, may arise in various ways.
In the negligence case of Muesig v. Harz,
Under the allegations of the petition, the plaintiff was not a trespasser, and the defendant was under a duty to exercise ordinary care to prevent injury to the plaintiff's automobile when such automobile was parked on such street or thoroughfare.
The plaintiff is not required to designate or denominate himself as an invitee, licensee, or trespasser eo nomine, in order to fix and assert his rights in such a case as this, but may depend upon the allegations of the substantive facts alleged in his petition to show what duty the law raises; that is, what duty the *494
defendant railway company was under to prevent injury to him or his automobile. It seems to us that the petition alleges the particular basal facts which give rise to such duties, and that the plaintiff relies upon a violation of those duties for a recovery. The grounds of the defendant's demurrer discussed in this division of the opinion are not meritorious. Western Atlantic Railroad v. Reed,
2. Where a special demurrer to a petition is overruled and an order taken to that effect, and thereafter, before the trial and before exceptions to such ruling are filed and within the time allowed by such order, the plaintiff amends his petition, if there was any error in overruling the demurrer to the petition in the first instance, the error was cured by the subsequent amendment. if the petition as thus amended is not subject to such demurrer. Atlantic Coast Line R. Co. v. McElmurray Bros.,
Applying this rule, we will consider the petition as amended after the order overruling the demurrer was filed, and determine whether the amendment cured the defect pointed out in the demurrer.
"Defendant demurs specially to paragraph 6 of said petition, upon the ground it is too general, vague, and indefinite, it not being set out therein what `agents' and `officers' of this defendant had knowledge of the use by petitioner of said `street' to park his automobile and what `agents' and `officers' made no objection, there being nothing in said paragraph or petition to identify them."
"In Augusta Ry. Co. v. Andrews,
In Atlantic Coast Line R. Co. v. Burroughs,
We think that the allegations of the petition in the instant case were sufficient without stating the name of any particular officer or agent of the defendant railway company.
3. In Atlanta West Point R. Co. v. Wise,
We agree with the defendant in error that Code, § 105-402 is not applicable to the case sub judice.
The petition plainly and distinctly set forth the elements necessary to a recovery, and the court did not err in overruling the general and special demurrers to the petition.
Judgment affirmed. Gardner and Townsend, JJ., concur. *496