Central of Georgia Ry. Co. v. Lawley

• Citation: 126 S.E. 273,33 Ga.App. 375
• Decision Date: 17 January 1925
• Docket Number: 15480.
• Parties: CENTRAL OF GEORGIA RY. CO. ET AL. v. LAWLEY. CENTRAL OF GEORGIA RY. CO. ET AL. v. JONES.
• Court: United States Court of Appeals (Georgia)

126 S.E. 273

33 Ga.App. 375

CENTRAL OF GEORGIA RY. CO. ET AL. v. LAWLEY.

CENTRAL OF GEORGIA RY. CO. ET AL. v. JONES.

No. 15480.

Court of Appeals of Georgia, Second Division

January 17, 1925

Syllabus by the Court.

"Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe." Civil Code 1910, § 4420. "There is a clear distinction between the duty owing to such an invitee and the duty owing to a mere licensee. An owner owes to a licensee no duty as to the condition of the premises, unless imposed by statute, save that he should not knowingly let him run upon a hidden peril, or willfully cause him harm; while to one invited he is under obligation for reasonable security for the purposes of the invitation." Crossgrove v Atlantic Coast Line R. Co., 30 Ga.App. 463 (1), 118 S.E 695; Smith v. Jewell Cotton Mill Co., 29 Ga.App. 461 (1), 116 S.E. 17.

While it is true that a railway company may, by deed from the owner, acquire a fee-simple title to the land traversed by its tracks, and such an absolute ownership of the soil will extend indefinitely upward so as to include the proprietorship of the air and space above such land, yet when it has acquired by condemnation, or by deed or contract as it ordinarily does, only what is termed a "right of way," such right of way is construed as amounting only to an easement appurtenant to the land, however extensive its duration and however exclusive and paramount may be the rights conveyed for the necessary purposes intended. Such right of way will not be taken to extend to a height above the surface of the tracks greater than is needed for the safe and convenient passage of trains and their burdens of whatever nature, and for the maintenance of the necessary, usual, and customary transportation instrumentalities and facilities. L. & N. R. Co. v. Willbanks, 133 Ga. 15, 19, 20, 63 S.E. 86, 24 L.R.A. (N. S.) 374, 17 Ann.Cas. 860; Gaston v. Gainesville Ry. Co., 120 Ga. 516, 517, 48 S.E. 188; L. & N. R. Co. v. Maxey, 139 Ga. 541, 542 (1), 77 S.E. 801; Citizens' Telephone Co. v. Cincinnati R. Co., 192 Ky. 399, 233 S.W. 901, 18 A.L.R. 615, 617, 618, and extensive case note; 22 R.C.L. 863-865; 3 Bouv. Law Dict. 3444; 4 Words & Phrases (2nd Series), pp. 391, 392; 19 C.J. 978, 979. See, also, Civ. Code 1910, §§ 5233, 2585 (3, 4); Ga. Granite Co. v. Venable, 129 Ga. 341 (2), 345, 346, 58 S.E. 864. Thus it is the general rule that a railway company, holding and occupying a right of way over land and over such portion of the space and air above as is necessary and proper in the use and enjoyment of its easement, has the rights and duties of an "occupier of land" with reference to invitees, under section 4420 of the Civil Code, who may by its express or implied invitation come upon the premises so occupied. As to such, it is held to the measure of ordinary care; but upon premises beyond the right of way thus occupied, the railway company is concerned neither as an owner nor as an occupant, and its liabilities in tort, to an alleged invitee upon premises on which it has no legal right, cannot be measured under the statutory rule applicable to invitees.

(a) However, where, as here alleged, the railway company holding the right of way assumed ownership or control of the air space above its tracks by entering upon a written contract with an electric company, whereby the latter company was granted the right and privilege to "erect and maintain" described lines of power wire "across and over" the "right of way and tracks" of the railway company, with the right reserved to the railway company to control the manner of erection and the change of location or removal of the conductors, poles, or supports, then, and under such circumstances, the railway company will not be permitted to dispute its occupancy or control of the space thus utilized by the electric company as against one who enters thereupon by the invitation of the railway company holding the right of way.

"An allegation in pleading which contradicts anything of which the court must take judicial cognizance is absolutely nugatory and will be disregarded." Rome Ry. & Lt. Co. v. Keel, 3 Ga.App. 769 (2), 773, 60 S.E. 468. But, while the courts are required to take notice of the elementary natural laws of general application, and the characteristic and scientifically established general properties of material substances and forces, such as electricity, and for this general purpose the personal information of the tribunal may be supplemented by resort to encyclopedias or standard scientific treatises of recognized accuracy, it is nevertheless the rule that special effects and modes of operation of physical substances and forces, which are not commonly known, and an understanding as to the application of which to the particular case may require scientific or expert knowledge not possessed by the court and jury, or about which experts may differ, or which might conceivably vary in effects under peculiar or special conditions, as shown by the pleadings and evidence, will not be judicially recognized, but will be left to proper modes of proof. 1 Chamberlayne on Modern Law of Evidence, §§ 703, 705, 719, 720, 820, 848, 858, 886, 903; 2 Id. §§ 1968 (a), 1988. In the instant case neither the trial judge nor this court can assume, as a matter of common and established knowledge, that electricity, especially an indirect or alternating current, as claimed by the plaintiffs (though it is not particularly alleged whether the current which caused the personal injuries sued for was direct or alternating), would not, under the high voltage stated, the peculiar arrangement of the wires, and the other facts alleged, jump for the distance of two feet or less to the heads of the injured persons, or draw a steel tape measure to such wires in the manner charged. To assume the physical impossibility of such effects would require expert knowledge as to the laying of electric wires, the effects and dangers of various kinds of current and voltage, such as would fall within the domain of an electrical engineer or scientific expert and observer, and such as this court does not possess or assume. See Hoppe v. City of Winona, 113 Minn. 252, 129 N.W. 577, 33 L.R.A. (N. S.) 449, Ann.Cas. 1912A, 247, where the probabilities of "brush" or "disruptive" discharges of electricity, and their likelihood of injuring persons in proximity to, but not in actual contact with, the wires, are considered and a judgment for a plaintiff was affirmed.

"Under section 4414 of the Civil Code 1910, an employer is not liable for the negligence of an independent contractor, unless the employment or tortious acts constitute one of the exceptions stated in that section or in section 4415." Malin v. City Council of Augusta, 29 Ga.App. 393 (1), 115 S.E. 504. While it is true that, under subdivision 5 of the latter section, "the employer is liable for the negligence of the contractor, * * * if the employer retains the right to direct or control the time and manner of executing the work, or interferes and assumes control so as to create the relation of master and servant, or so that an injury results which is traceable to his interference" ( Huey v. City of Atlanta, 8 Ga.App. 597, 70 S.E. 71), it is nevertheless the rule that, where the owner of premises surrenders the possession and control to an independent contractor, the contractor is in law chargeable with knowledge of any and all ordinary risks and hazards thereto appertaining, even though some peculiar arrangements of the premises might, under certain conditions, become sources of hidden danger. Butler v. Lewman, 115 Ga. 752, 42 S.E. 98. In such a case, in order for the owner or occupier of premises to be held liable to the workman of the contractor, the hazard must be latent or concealed, and the owner must have retained the custody and control of the premises. Huey v. City of Atlanta, supra.

(a) "It is an elementary rule of construction, as applied to a pleading, that it is to be construed most strongly against the pleader; and that, if an inference unfavorable to the right of a party claiming a right under such a pleading may be fairly drawn from the facts stated therein, such inference, on demurrer, will prevail in determining the rights of the parties." Moore v. Seaboard Air Line Ry. Co., 30 Ga.App. 466 (1), 118 S.E. 471; Krueger v. MacDougald, 148 Ga. 429 (1), 96 S.E. 867. Conclusions in conflict with pleaded facts are to be disregarded. Moore v. Seaboard Air Line Ry. Co., supra, 30 Ga.App. 466 (4), 118 S.E. 471. If the petition be ambiguous or contradictory in its averments, not with reference to the form of action selected, as in Stoddard v. Campbell, 27 Ga.App. 363 (3), 108 S.E. 311, and cases cited, but as to facts essential to any right of recovery, ambiguities or contradictions must, on demurrer, be resolved against the pleader. While there are general averments charging that the defendants had never relinquished possession of the premises occupied by them including the place of injury, these allegations are demurred to specially, and it is manifest from other averments that the independent contractors employed by the county had possession of and entirely controlled the construction...