Atlantic Coast Line R. Co. v. Layne

• Decision Date: 07 July 1953
• Docket Number: No. 2,No. 34609,34609,2
• Citation: 77 S.E.2d 565,88 Ga.App. 674
• Parties: ATLANTIC COAST LINE R. CO. et al. v. LAYNE
• Court: Georgia Court of Appeals

Page 565

77 S.E.2d 565

88 Ga.App. 674

ATLANTIC COAST LINE R. CO. et al. v. LAYNE.

No. 34609.

Court of Appeals of Georgia, Division No. 2.

July 7, 1953.

Rehearing Denied July 30, 1953.

Syllabus by the Court.

1. The court did not err in overruling the demurrers to the petition of the plaintiff as amended.

2. (a) The evidence establishes a public crossing by implication.

(b) The evidence sustains a verdict under the provisions of law embraced in Code, § 94-503.

(c) The verdict of the jury, under the facts and the law applicable thereto, does not sustain the contentions of the defendants on the ground that the lack of diligence on the part of the plaintiff barred her right of recovery.

3. The assignments of error on the special grounds, based on the amendment to the original motion are without merit for the reasons set forth in the opinion.

This is the second appearance of this case in this court. See Atlantic Coast Line R. Co. v. Sweatman, 81 Ga.App. 269, 58 S.E.2d 553. The defendant in error here (hereinafter called the plaintiff) in that case and in the instant case is the same person. Her name was changed from Sweatman to Layne upon her marriage. The original petition alleged that the plaintiff fell upon some loose rock which rolled under her feet while she was attempting to cross a pedestrian walk across the tracks of the defendants. It was alleged that the crossing was a public crossing, and that the defendants violated the provisions of Code, § 94-503 by failing to keep the crossing in good order. By amendment the original petition became count 1, and a new count was added, designated as count 2. The allegations of count 2 were essentially the same as count 1 except count 2 contained an additional paragraph designated as paragraph six (6). This paragraph reads as follows: 'Petitioner shows that said crossing has been accepted and recognized as a way and road over defendant's right of way and railway tracks at this point by the municipal authorities of the City of Decatur and these public authorities have worked on said crossing, keeping same passable, and improving same.'

The demurrers to count 2 were then renewed, and both count 2 and the entire petition were demurred to. These demurrers were overruled and the case was brought to this court as above stated. In Atlantic Coast Line R. Co. v. Sweatman, supra, this court held that count 1 did not state a cause of action, but that court 2 did state a cause of action because of the allegations made in paragraph 6 above quoted. Thereafter, the decision of this court was made the judgment of the lower court and count 1 was stricken from the petition. The plaintiff then amended paragraph 6 of count 2 of the petition by adding the following: 'Petitioner shows that the said municipal authorities accepted and recognized said way as a public road in that said municipal authorities did treat said way as a part of their system of public highways in that said municipal authorities did for several years prior to said accident, maintain police personnel of said city at the junction of said way and College Avenue for the purpose of directing pedestrian traffic across College Avenue from said way and across College Avenue on to said way.

'Petitioner shows that said way has been used by the public and particularly school children for a period of time in excess of twenty years in going to and from Oakhurst School on Meade Road and the said municipal authorities placed the said police personnel at said junction for the purpose of controlling traffic at said junction and to aid and direct the said children to and from the said way across College Avenue.'

To paragraph 6 as amended special demurrers were filed, and a general demurrer was filed to the petition as amended. These demurrers were overruled and exceptions pendents lite were duly certified and filed. The case proceeded to trial and a verdict was returned for the plaintiff. A motion for new trial was denied. The case is here for review by bill of exceptions to the denial of the motion for new trial, and also on the exceptions pendente lite. The amended motion for new trial contains the usual general grounds and 16 special grounds.

Marshall, Greene, Baird & Neely, Atlanta, B. Hugh Burgess, Decatur, for plaintiffs in error.

John L. Respess, Jr., Hubert C. Morgan, James R. Venable, Atlanta, for defendant in error.

GARDNER, Presiding Judge.

1. We shall first deal with the exceptions pendente lite to the judgment overruling the demurrers of the defendants. Under the amendment to the petition, after the remittitur was made the judgment of the court below, we are of the opinion that the petition set out a cause of action. See division 1 of the court's opinion when the case was here before, and particularly this excerpt from that opinion: 'The intention to dedicate need not be shown by an express declaration to that effect. Such intention may be inferred from an acquiescence by the owner in the use of his property by the public. But the use must be of such a character as to clearly indicate that the public has accepted the dedication of the property of the public use. The acceptance need not be express but if the way be used by the public and worked or treated by the public authorities as a part of a system of public highways in the place where the way is claimed and is continued 'for such length of time that the public accommodation and private rights might be materially affected by the interruption of the enjoyment,' the dedication to the public use is complete as against the owner of the fee.' Atlanta Coast Line R. Co. v. Sweatman, 81 Ga.App. 269, 58 S.E.2d 553, 557, supra, citing Mayor, etc., of City of Madison v. Booth, 53 Ga. 609; Parsons v. Trustees, etc., 44 Ga. 529; Georgia Railroad and Banking Company v. City of Atlanta, 118 Ga. 486, 45 S.E. 256; Kelsoe v. Oglethorpe, 120 Ga. 951, 48 S.E. 366. We are of the opinion and so hold that the court did not err in overruling the demurrers to the petition as amended.

2. (a) We come next to consider the motion for new trial. We will consider the general grounds first. We deem it advisable, in the outset, to set forth the allegations in count 2 for the reason that throughout the brief covering the general grounds, as well as the special grounds, these allegations and the evidence and the law pertaining thereto are discussed. We will not set forth paragraph 6 and the amendments thereto, since we have quoted paragraph 6 and the amendments thereto hereinbefore. The petition, omitting the formal parts and omitting paragraph 6 reads as follows:

'1. The defendants, Atlantic Coast Line Railroad Company and Louisville & Nashville Railroad Company, lessee of the Georgia Railroad, are railroad corporations, having an office and agent, and operate and maintain a line of railway in and through said State and County.

'2. The defendant, Georgia Railroad & Banking Company owns a line of railroad in and through said county, and has an office, agent and place of business in said State and County.

'3. The defendants have injured and damaged petitioner's daughter, Mary Joyce, in the sum of $25,000.00.

'4. On the evening of February 20, 1948, Mary Joyce, while in the act of crossing the mainline railroad tracks of the defendants in this county, between Atlanta in Fulton County and Decatur in this county, at a point one mile west of Decatur and over what is commonly known as the 'Meads Station Crossing', fell and received several severe and permanent personal injuries, causing her to be hospitalized for over three months and for which she is still under medical care.

'5. Petitioner shows that said 'Meads Station Crossing', over defendants' said tracks is now used and has been used continuously by the public as a crossing or [way] over these tracks from the streetcar station on the Northerly side thereof to College Avenue and environs on the Southerly side thereof, and same has been so used for more than 20 years continuously and with defendant's acquiescence and consent.

'7. Petitioner shows that under the law and specifically under the mandatory provisions of Code section 94-503, it was the duty of said defendants to 'keep in good order, at their expense', such foot crossing and way over their said railroad tracks.

'8. Petitioner further shows the defendants' servants and employees, and particularly those in charge of the maintenance and upkeep of defendants' tracks and right of way, have failed and neglected to keep that portion of said crossing over the railroad tracks in a state of repair and good order, but have placed or caused to be placed loose rocks between the cross ties and the rails at the point where this road way crosses said tracks and have made no effort to keep the same in a safe and proper condition.

'9. Petitioner shows that defendants have failed and are failing and neglecting to comply with the duty imposed on them by said Code Section 94-503 to keep said public road and way crossing over their tracks in good order and repair, at their expense, and as a result hereof, petitioner, in attempting to use said crossing to cross from the Southerly side to the Northerly side, as same was continually used by the public and for which it was established, stepped upon said loose rocks and was caused to stumble, lose her footing and to trip on the Northern most rail of the North tracks of defendants and caused to violently fall and to become injured as alleged herein.

'10. At the time Mary Joyce sought to cross defendant's said tracks over said foot crossing it was nearing evening and the loose stones were not readily visible, and would not have stumbled and tripped on said rail and fallen had she not been caused to stumble by stepping on loose rocks which rolled under her feet.

'11. Petitioner shows that such rocks, if necessary to reinforce and strengthen the tracks and road bed of defendant's at this point should have been packed and tamped into the...