Central of Ga. Ry. Co. v. Leonard

• Decision Date: 11 June 1934
• Docket Number: 23753.
• Citation: 176 S.E. 137,49 Ga.App. 689
• Parties: CENTRAL OF GEORGIA RY. CO. et al. v. LEONARD.
• Court: Georgia Court of Appeals

176 S.E. 137

49 Ga.App. 689

CENTRAL OF GEORGIA RY. CO. et al. v. LEONARD.

No. 23753.

Court of Appeals of Georgia, First Division

June 11, 1934

Rehearing Denied Sept. 27, 1934.

On Motion for Rehearing.

Syllabus by the Court.

1. "A corporation charged with a duty to the public can not, by sale or otherwise, dispose of its property or franchises so as to relieve itself from liability for acts done or omitted, without legislative sanction expressly exempting it from liability." The Act of 1899 (Civil Code of 1910, §§ 2598, 2599) prescribing that leases of railroads must be recorded in every county through which the line of road may run, and prescribing certain penalties for failure to record, did not limit the liability of the railroad company but extended it. It did not affect the right of a member of the general public to hold the lessor railroad liable for the negligent acts of the lessee. The trial court therefore, properly overruled the general demurrer on this point.

2. The petition does not disclose upon its face, when construed most strongly against the pleader, facts that show that the plaintiff was himself lacking in ordinary care so as to bar a recovery.

3. Questions of what amounts to negligence, contributory negligence, and what is the proximate cause of an injury address themselves to the determination of the jury, and this court will decline to solve them except in plain and indisputable cases. Atlantic Coast Line R. Co. v Daniels, 8 Ga.App. 775, 70 S.E. 203; Georgia Ry. & Electric Co. v. Norris, 135 Ga. 838, 70 S.E. 793; Letton v. Kitchen, 166 Ga. 121, 142 S.E. 658; Central of Ga. Ry. Co. v. Tribble, 112 Ga. 863, 38 S.E. 356; Logan v. Hope, 139 Ga. 589, 77 S.E. 809; Perry v. Macon, etc., R. Co., 101 Ga. 400, 29 S.E 304; Georgia Ry. & Power Co. v. Ryan, 24 Ga.App. 288, 100 S.E. 713; Bonner v. Standard Oil Co., 22 Ga.App. 535, 96 S.E. 573; Georgia Ry. & Electric Co. v. McAllister, 126 Ga. 447, 54 S.E. 957, 7 L.R.A. (N. S.) 1177; Petty v. Atlantic & Birmingham Air Line Ry. Co., 132 Ga. 153, 63 S.E. 817; Western & A. R. Co. v. Bryant, 123 Ga. 77, 51 S.E. 20; City of Dalton v. Humphries, 139 Ga. 556, 77 S.E. 790; Morgan County v. Glass, 139 Ga. 415, 77 S.E. 583; Atlantic Coast Line R. Co. v. Whitney, 13 Ga.App. 345, 79 S.E. 181; Rome Ry. & Light Co. v. King, 30 Ga.App. 231, 117 S.E. 464, and citations.

a. "Where a petition states the facts upon which the claim of negligence is based, a general allegation in the petition, following a statement of the facts relied upon to show negligence, will be construed to have reference to the particular facts pleaded; and, so construed, it is not subject to special demurrer." Fuller v. Inman, 10 Ga.App. 680, 74 S.E. 287; Rome Ry. & Light Co. v. King, supra.

b. Those grounds of the special demurrer in which it is contended that the allegations of negligence are conclusions of the pleader, and that the alleged negligence was not the proximate cause of the injury, are without merit.

4. An allegation, in a petition for the recovery of damages for an injury occurring to the plaintiff at a public street crossing by the running of one of the defendant's trains, that the defendant was negligent in not having "stationed at the crossing a watchman to warn your petitioner that the said defendants were at that time switching cars across said crossing," was not subject to special demurrer. The petition alleged that the street which crossed the railroad tracks was a public street, that eleven tracks of the defendant crossed the same, and that the street was in constant use. The allegation of negligence was a conclusion drawn from the pleaded facts, and was not subject to special demurrer. Central of Ga. R. Co. v. Barnett, 35 Ga.App. 528, 134 S.E. 126; Foster v. Southern R. Co., 42 Ga.App. 830, 157 S.E. 371; Central of Ga. R. Co. v. Dumas, 44 Ga.App. 152, 160 S.E. 814.

5. In a suit for damages because of injuries negligently inflicted upon the plaintiff at a public crossing within the limits of a city, an allegation, following specific grounds of negligence, that "the above named acts of negligence of the Central of Georgia Railway Company were committed by its own employees and agents," was not demurrable upon the ground that "it is not alleged what employees, in what capacity they were working, and what were their relations and duties, or the nature of their employment with said railway company." See, in this connection, Pierce v. Seaboard Air-Line Ry., 122 Ga. 664, 50 S.E. 468; South Ga. Ry. Co. v. Ryals, 123 Ga. 330, 51 S.E. 428; City of Rome v. Justice, 40 Ga.App. 196, 149 S.E. 88; General Supply & Construction Co. v. Lawton, 131 Ga. 375, 62 S.E. 293, distinguishable.

a. There is no merit in any of the remaining grounds of the special demurrer.

6. It is not error for the court to fail to give in charge to the jury the meaning of the term "negligence per se," in the absence of a timely written request to do so. See, in this connection, Wakefield v. Lee, 18 Ga.App. 648, 90 S.E. 224, and cit.; Harvey v. Bartow County, 31 Ga.App. 84, 119 S.E. 538; Freeman v. Petty, 22 Ga.App. 199, 95 S.E. 737, and cit.; Georgia Railroad & Banking R. & C. Co. v. Farmer, 45 Ga.App. 130, 164 S.E. 71; Equitable Loan & Security Co. v. Lewman, 124 Ga. 190, 52 S.E. 599, 3 L.R.A. (N. S.) 879. However, it appears that the trial judge did charge the jury that, "Whatever a statute requires positively the plaintiff or the defendant to do, failure to do so is negligence per se, that is, negligence as a matter of law," which is a substantial definition of the term.

7. Exception is taken to certain excerpts from the charge of the court, not that they are themselves erroneous, but that they deprive the defendant of one of its main defenses; that is, that embodied in section 4426 of the Civil Code 1910. These exceptions are without merit.

8. The trial judge did not, as complained in some of the grounds of the motion for new trial, deprive the defendant of any of its defenses. Each defense of the defendant was fairly and fully stated by the court. See Augusta-Aiken Ry. & Electric Corp. v. Sibert, 12 Ga.App. 163, 76 S.E. 1044; Davis v. Whitcomb, 30 Ga.App. 497, 118 S.E. 488.

9. The law on the subject of damages as given in charge to the jury seems to be in accord with the rules laid down in the case of Florida Central & Peninsular R. Co. v. Burney, 98 Ga. 1, 26 S.E. 730.

10. The remaining grounds of the amendment to the motion for new trial are without merit. It is only necessary to state that there was some sufficient evidence to support the substantial allegations of the petition, and, the verdict having the approval of the trial judge, this court is without authority to interfere with it.

Error from City Court of Albany; Clayton Jones, Judge.

Suit by N.H. Leonard against the Central of Georgia Railway Company and another. Judgment for plaintiff, and defendants bring error.

Affirmed.

Leonard Farkas & Walter H. Burt, of Albany, for plaintiffs in error.

M. B. Peacock, of Albany, for defendant in error.

GUERRY Judge.

Only the first, second, and seventh headnotes need elaboration. Where a member of the general public sustains an injury by the negligent running of railway cars of a lessee railroad company at a public crossing, may he maintain an action against the lessee and the lessor company, where the lease is recorded, under the act of 1899 (Civil Code, §§ 2598, 2599) requiring such leases to be recorded and prescribing certain penalties for failure to record? Plaintiff was alleged to have been injured at a public street crossing in the city of Albany by the negligence of the Central of Georgia Railway Company in operating a freight train over such crossing, which company leased and operated such train over the tracks of the Southwestern Railroad Company. This lease was recorded under the act of 1899 (Civil Code, §§ 2598, 2599) which as codified reads as follows: "§ 2598. All railroad companies in this State, which have already leased or which may hereafter lease their property or line of road to another railroad company or to a private person, shall have the contract of lease or other contract of like nature, evidencing the change of control and possession of such property or line of road, recorded in the clerk's office of the superior court in each county through which said line of road may run. § 2599. A failure or refusal to comply with the preceding section will authorize any person having a right of action against said railroad or the lessee thereof, including any employee of the same, to file and prosecute said action against said railroad company in all respects, as if the same were the proper party defendant, and any plea or other defense attempting to shift liability to such lessee or denying control or possession of such property or line of road filed either to the suit of a person belonging to the general public or to a suit filed by an employee as aforesaid, shall not avail to protect any such railroad against liability that fails or refuses to record as provided in the preceding section." Plaintiff filed suit against both railroad companies for damages. The Southwestern Railroad Company filed a demurrer to the petition contending that the petition disclosed that the lease between it and the Central of Georgia Railway Company was recorded in the county of the alleged injury, and that therefore, under the provisions of the above act, it was not liable for the negligence of the Central of Georgia Railway Company. Prior to the passage of the above act there was adopted, in the Civil Code of 1895, section 1864 (section 2228 of the Civil Code of 1910) a provision, which reads as follows: "A corporation charged with a duty to the public can not, by sale or otherwise, dispose of its property...