Central of Georgia Ry. Co. v. Keating
| Decision Date | 13 July 1933 |
| Docket Number | 9365. |
| Parties | CENTRAL OF GEORGIA RY. CO. v. KEATING. [*] |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Grade Crossing Elimination Act held not to apply to bridge constructed prior to its passage, unless improved as existing structure in accordance with statutory provisions (Laws 1927 p. 299; p. 304, §§ 8, 9; Civ. Code 1910, §§ 2673, 2674).
Amendment to petition, made after first term, held not to open petition to plea in abatement, where applicability of plea if any, was apparent before, as well as after, amendment (Civ. Code 1910, §§ 5641, 5652).
Instruction precluding recovery when automobile fell from overhead railroad bridge, if railroad proved to jury's satisfaction that its employees exercised all ordinary and reasonable care, held not erroneous as placing burden of proof upon railroad.
Allegations that railroad was negligent in not having warning sign of approach of dangerous curve and bridge from which automobile fell, and in maintaining bridge in dangerous and unnecessary curve in approach thereto held not demurrable (Civ Code 1910, §§ 2590, 2673, 2674, 2680-2682).
Allegations were not demurrable on the grounds that they were irrelevant and immaterial; that there was no legal duty on railroad to have warnings, signs, or signals to give notice of the approach to the curve or bridge; that it was alleged that the bridge was part of the public road and no act of railroad in laying it out or keeping it was charged; that it was not alleged that the location of the bridge was made by railroad or that railroad could be legally held responsible for the location of the bridge.
Allegations that railroad was negligent in allowing sand, rock, and gravel to accumulate and be raked in road in approach to bridge, from which automobile fell, held demurrable on ground that defendant's negligence in respect to such accumulations was not shown.
Charge authorizing recovery, if plaintiff proved any of grounds of negligence alleged, held error, where one of such grounds did not constitute legal basis for recovery.
In suit for damages sustained when large automobile fell from overhead railroad bridge, testimony that large automobile passed witness' home about half mile from scene of accident, traveling at 50 to 75 miles per hour towards bridge, held admissible as res gestæ, and to corroborate other evidence of excessive speed.
1. The Act approved August 23, 1927 (Ga. Laws 1927, p. 299), known as the Grade Crossing Elimination Act, does not apply to a bridge constructed prior to its passage, unless the bridge has been improved or bettered as "an existing structure" in accordance with the provisions of section 8.
2. An amendment to a petition, made after the first term, does not open the petition to a plea in abatement, where, if the petition was at all subject to such plea, this fact was apparent before, as well as after, the amendment.
3. The instruction that "the plaintiff could not recover if the company shall make it appear to the satisfaction of the jury that its employees exercised all ordinary and reasonable care and diligence" was not erroneous upon the ground that it placed the burden of proof upon the defendant.
4. The plaintiff sued the railway company for damages alleged to have been sustained by him when his automobile fell off a bridge constructed by the defendant railway company at a public crossing. The allegations that the defendant "was negligent in not having a warning, sign, or signal so as to give notice of the approach of the dangerous curve and said bridge and the approaches to said bridge." and "in maintaining and keeping said bridge in a dangerous and unnecessary curve in the approach thereto," were not subject to demurrer upon any ground taken by the defendant.
(a) The allegation that the defendant was negligent "in allowing sand, rock, and gravel to accumulate and be raked in the road in the approach to said bridge" was subject to demurrer upon the ground that it was not shown that the defendant was guilty of any negligence in regard to these matters.
b) The court erred in charging the jury that the plaintiff would be entitled to recover if he proved any one or more of his alleged grounds of negligence, where one of such grounds did not constitute a legal basis for a recovery.
5. Where there was evidence that the plaintiff was running at an excessive rate of speed as he approached the bridge, this evidence could be corroborated by proof that the plaintiff was driving at a reckless or dangerous rate of speed a short time previously.
Certiorari to Court of Appeals.
Two separate suits by J. B, Keating against the Central of Georgia Railway Company for personal injuries and damages to his personal property and for the homicide of his wife, which were tried together. Judgment for plaintiff in first suit was affirmed by the Court of Appeals (45 Ga.App. 811, 165 S.E. 873), and defendant brings certiorari.
Reversed.
Beck, Goodrich & Beck, of Griffin, and Boykin & Boykin, of Carrollton, for plaintiff in error.
Willis Smith and Smith & Millican, all of Carrollton, for defendant in error.
J. B. Keating brought two suits against Central of Georgia Railway Company, one for injuries to himself and for damages to his personal property, and the other for the homicide of his wife, all claimed to have been caused by the negligence of the defendant. The plaintiff and his wife were on their way from Atlanta to Talladaga, Ala., and were traveling in a heavy Packard automobile which was being driven by the plaintiff. For some distance between Bremen and Carrollton a line of the defendant's railroad paralleled the highway upon which the plaintiff and his wife were traveling. They reached a point where the public road curved to the left and crossed a bridge over the railroad track. The plaintiff's automobile fell off the bridge, with the result that the plaintiff was personally injured, his automobile was wrecked, and his wife was killed. Upon the trial of the suit for the homicide of the plaintiff's wife, the jury found a verdict in favor of the defendant, after which the court granted a new trial. Some time later, the plaintiff amended each petition by adding a second count, for the purpose only of varying the details of the transaction upon which the actions were predicated. These amendments were allowed in each case, several terms after the first term. Upon the allowance of the amendments, the defendant filed a plea in abatement in each case, claiming that the plaintiff's cause of action was single, so that as to each action there was another suit pending between the same parties for the same alleged tort. The defendant also filed a demurrer and an answer to the second count of each petition. The court overruled the demurrers, and struck the pleas in abatement, and the two cases were then tried together. The plaintiff recovered a verdict for substantial damages upon the second count of each petition. The defendant's motions for a new trial were overruled, and both cases were carried to the Court of Appeals. That court reversed the judgment refusing a new trial in the suit for the homicide of the plaintiff's wife, but affirmed the judgment in the suit for personal injuries to the plaintiff and for damages to his automobile. The latter case was then brought by certiorari to the Supreme Court. Certiorari was granted mainly for the purpose of considering an important question relating to the Grade Crossing Elimination Act of 1927, but the petition for certiorari also raised other questions which are now to be decided. For the decision of the Court of Appeals, see 45 Ga.App. 811, 165 S.E. 873.
1. The defendant contended that its duties with respect to this bridge or overpass and the approaches thereto were determined by the Act of August 23, 1927 (Ga. Laws 1927, p. 299), known as the Grade Crossing Elimination Act, and not by the provisions of the Civ. Code, §§ 2673, 2674. The bridge was constructed prior to 1927, and neither the county nor the state road authorities have taken any steps to bring about its "improvement or betterment." The Court of Appeals properly held that in these circumstances the act of 1927 was inapplicable. This is the necessary conclusion, in view of sections 8 and 9. Counsel for the defendant speak of the anomalous situation that will be created by such an interpretation. The proposition ruled is not strange by any means. For instance, the act of 1888 (Laws 1888, p. 39), by which counties were made liable for damages caused by defective bridges, does not fix a liability where the bridge was constructed before the passage of the act. Warren County v. Evans, 118 Ga. 200, 44 S.E. 986; Joyce v. Whitfield County, 28 Ga.App. 797, 113 S.E. 52.
2. We agree with the Court of Appeals that the plea in abatement was filed too late. This was a dilatory plea, and should have been filed at the first term. Civil Code (1910), § 5641; Merritt v. Bagwell, 70 Ga. 578 (3a). The amendment was not a material one so far as the right to file a plea in abatement was concerned. If the petition was subject to abatement, as contended, this fact was apparent before as well as after the amendment. The amendment did not open the petition to such a plea for the first time. "An amendment which does not so change a plaintiff's petition as for the first time to make a particular defense available is not to be regarded 'material,' within the meaning of" section 5652 of the Code. Quillian v Johnson, 122 Ga. 49 (3), 49 S.E. 801, 803; White v. North Georgia Electric Co., 136 Ga. 21 (3), 70 S.E. 639; Chapman v. Davis, 4 Gill (Md.) 166. In this view, we do not decide the question whether the cause of action was single or double. See, on that question, Georgia...
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