47 Ga. App. 591 | Ga. Ct. App. | 1933
Lead Opinion
Claude Crawford filed suit in the superior court against the Western and Atlantic Railroad Company, and the defendant duly filed a demurrer and answer. Upon hearing the demurrer the trial court overruled all of the grounds thereof. The ease proceeded to trial and there was a verdict in favor of the plaintiff. The defendant specially demurred to paragraph 12 of the petition, which reads as follows: “The engineer operating the locomotive-engine of said train while approaching said crossing failed to keep and maintain a constant and vigilant lookout along the tracks ahead of said engine, and petitioner charges such failure as negligence resulting in his injury and damage hereinafter described.” The demurrer alleged that the said paragraph should be stricken, “because said allegations are immaterial and irrelevant in view of the following allegations of the plaintiff contained in paragraph eleven of the petition, to wit: ‘The crossing in question is a blind crossing for trains approaching said crossing from the north in that there is a deep cut immediately north of said crossing, which prevents persons approaching said crossing from the west from seeing train approaching said crossing until they are within five or six feet of the tracks of the defendant company/ and in view of the
Grounds 2 and 3 of the demurrer are directed against paragraph 13 of the petition, which reads as follows: “The engineer operating the locomotive-engine of said train failed to exercise due care in approaching said crossing, in order to avoid doing injury to persons on said crossing or at a point upon the line of said railway at any point within fifty feet of said crossingthe complaint being that the allegations are merely conclusions of the pleader. “A general allegation of negligence is a mere conclusion. The conclusion may be wrong; and, therefore, the particular facts relied irpon to support the conclusion should be pleaded. It is permissible, however, to set forth the facts, and then conclude that these facts amount to negligence. Demurrer will'then raise the question whether the conclusion is good in law.” Fuller v. Inman, 10 Ga. App. 680, 694 (74 S. E. 287). In the petition in the case at bar the defendant had already pleaded that the acts of negligence were
Paragraph 4 of the demurrer went to a part of the petition which was practically a restatement of the allegations of paragraph 12 of the petition, and, for the same reasons set forth in sustaining the demurrer to paragraph 12, it was error to overrule the fourth ground of the demurrer. (
Eeversible error having been committed by the trial judge in failing to sustain grounds 1 and 4 of the special demurrer, subsequent proceedings thereto were nugatory.
J udgment reversed.
Rehearing
ON MOTION FOR REHEARING.
This decision does not hold as a matter of law that merely because the defendant could not see the engineer, the engineer could not see the defendant, but holds that the facts as pleaded made it impossible for the engineer to see the plaintiff,— construing such allegations most strongly against the pleader. We can conceive of conditions where the plaintiff could not see the engineer, and yet the engineer could see the plaintiff; and where such conditions are pleaded, the case would be differentiated from the instant case. The plaintiff can of course show that conditions are such 'that he could not see the engineer, so as to show that he was in the exercise of due care. But if the plaintiff sets out in a different paragraph, as an act of negligence upon which he seeks to recover, something that is impossible under his pleading, this paragraph should be stricken on proper demurrer, there being nothing set out in this paragraph save this act of negligence, which is one of the acts of negligence upon which the plaintiff seeks to recover.
Rehearing denied.