21 Ga. App. 461 | Ga. Ct. App. | 1917
1. The plaintiff sued by her next friend, alleging that she was a minor about 9 years of age and was the only child of her deceased father, who left no wife or other children surviving him. She alleged in her petition, that her father was an employee of the defendant company, and was killed while using a well-established pathway along the tracks and right of way of the defendant between its depot and certain shanties and section-houses belonging to it, where he. lived, which pathway had been in such use by its employees and by the public constantly for more than 20 years; that such use had become' the fixed custom of which all “of the agents, servants, and employees of said defendant company had knowledge;” and that “the use and custom was so common that it was known to all [italics ours] of the engineers, firemen, and- other employees operating the trains of
(а) Under the circumstances set forth in the petition, it does not appear that the court erred in overruling the special demurrers calling for fuller and more specific allegations as to the time, place, and manner of the killing.
(б) The general demurrer was likewise properly overruled, as a cause of action was set forth. Parker v. Georgia Goast &c. Railroad Go., 136 Ga. 629 (71 S. E. 1090); L. & V. Railroad Co. v. Rogers, 136 Ga. 674 (71 S. E. 1102); Western & Atlantic R. Co. v. Watkins, 14 Ga. App. 388 (80 S. E. 916); Shaw v. Georgia Railroad., 127 Ga. 8 (55 S. E. 960). This ruling is not in conflict with the holding of the Supreme Court in Gulf Line Railway Co. v. Way, 137 Ga. 109 (72 S. E. 917), but is in exact accord with the decision in Central Ry. Co. v. Tapley, 145 Ga. 792 (89 S. E. 841), where it is held: “A petition in a suit
2. There is no substantial merit in any of the special grounds of the motion for new trial, complaining of excerpts from the charge of the court, or (in the absence of any timely written request) in the grounds complaining of the failure by the court to give certain other instructions. The charge as a whole fairly and fully submitted the issues in the ease.
3. The evidence was sufficient to authorize the conclusion that those operating the train of tiie defendant company had reason to anticipate the presence of the deceased on the tracks or right of way of the defendant, at or near the point where he was killed, and that they were negligent in failing to discover his presence on the tracks and in taking the necessary steps to preserve his safety; and since there was some evidence to sustain all the material allegations in the petition and the verdict has been approved by the trial judge, this court is not authorized to set it aside.
Judgment affirmed,.