Central of Georgia Ry. Co. v. Brandenburg
| Decision Date | 16 August 1907 |
| Citation | 58 S.E. 658,129 Ga. 115 |
| Parties | CENTRAL OF GEORGIA RY. CO. v. BRANDENBURG. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
When this case was before the Supreme Court on a former occasion ( Kemp v. Central Ry. Co., 122 Ga. 559, 50 S.E. 465) it was held that the petition was good as against a general demurrer, but that the special demurrer should have been sustained. Before the remittitur was entered, the plaintiff offered an amendment to the petition, attempting to cure the defects pointed out in the special demurrer originally filed as well as in the amendment to the special demurrer, which was filed to the petition as amended. While the amendment cured some of the defects, the petition as amended was still subject to some of the objections raised in the special demurrer.
[Ed Note.-For cases in point, see Cent. Dig. vol. 41, Railroads §§ 1331, 1337.]
Error from Superior Court, Bulloch County; B. T. Rawlings, Judge.
Action by Mrs. Kemp against the Central of Georgia Railway Company. Pending the action, plaintiff intermarried with one Brandenburg, and the action was continued in the name of A. K. Brandenburg. Judgment for plaintiff, and defendant brings error. Reversed.
Mrs. Kemp brought suit for damages resulting from the homicide of her husband. The petition alleged that the defendant, by the operation of its locomotive and cars in a careless, negligent, and improper manner, ran over and killed her husband, in the county of Bulloch, at a point between Parish and Metter stations; that the killing was done by a passenger train going west, upon a straight track, and occurred on the 12th day of February; and that the conduct of the agents and employés of the railroad on the occasion in question was wrongful and wanton. It alleged that her husband was 26 years of age, able-bodied, and well educated, and was a farmer, merchant, and school teacher, and earning an annual income of $1,000. To this petition the defendant filed both general and special demurrers. These demurrers were overruled, and the defendant excepted. The judgment overruling the general demurrer was affirmed by this court, and the judgment overruling the special demurrer was reversed. Kemp v. Central Ry. Co., 122 Ga. 559, 50 S.E. 465.
Before the remittitur was entered in the trial court the plaintiff offered an amendment alleging, in substance, that the defendant was negligent at the time and place in question, in that it ran its cars at a high rate of speed, greater than was necessary or usual, or was required to make the schedule upon which the train was run; that this amounted to recklessness; that at the place where the husband of plaintiff was killed the public generally were accustomed to use the roadway of defendant as a path or passageway, and the servants in charge of the train had reason to anticipate that there would be persons passing at this point, and they negligently failed to keep a lookout for such persons; that the locomotive was not equipped with a proper headlight, and the headlight was not burning on the occasion in question; that the company failed "to equip said train with brakes, or air brakes, and other appliances necessary and requisite for the safe operation" of the train, and without which the servants in charge thereof could not stop the train, even after having become aware of the presence of the plaintiff's husband upon the track; that the servants and agents in charge of the train were careless and negligent in failing and refusing to stop the train after they had notice of the presence of the plaintiff's husband on the track and in imminent danger of being killed; that the locomotive and cars of the defendant were old, worn out, improperly equipped, and not suited for the purpose for which they were used; that the servants in charge of the train failed and refused to give any signal at the crossing near which the husband of plaintiff was killed, and to slacken the speed of the train on approaching the crossing, thereby failing to give him notice of the approach of the train in time for him to have saved himself; that the train was run in a reckless and wanton manner, without regard to the safety of the persons traveling along the highway; that the servants in charge of the train, after the presence of plaintiff's husband on the track was known to them, failed and refused to reduce the speed of the train, to give any signal, or perform any other act required to avoid the killing of her husband, and, even after the presence of plaintiff's husband became known, ran said train in a reckless and wanton manner, without regard to his life, striking and killing him; that the engineer in charge of the locomotive was an old man, with failing eyesight, who could see but a short distance, and was therefore an incompetent and unfit person for the duty required to be discharged; that the engineer and fireman failed and refused to keep a lookout, although they were running on a straight track, with nothing to obstruct their view for half a mile or more; and that the husband of plaintiff "was entirely free from any fault on his part."
The defendant filed both a general and special demurrer to the petition as amended. The special demurrer raised the objections that the petition did not show any duty or diligence on the part of defendant to the plaintiff's husband; that there was nothing in the allegations which would amount to wantonness on the part of the defendant; that it appears, from all of the averments, that the husband of plaintiff, by the exercise of ordinary care, could have avoided the consequences of the alleged negligence of the defendant; that it did not appear, from the averments, how the alleged acts of negligence caused or contributed to the injury of plaintiff; that it does not aver in what respect the locomotive and cars were improperly equipped; that it does not appear what degree of diligence was due by the defendant to the plaintiff's husband; that it does not appear that the plaintiff's husband was at or upon any public road crossing, or so near thereto as to render the failure of the defendant to observe the statutory signal for public road crossing negligence relatively to the plaintiff's husband; that it was not alleged in what respect the engineer was an incompetent or unfit person, nor does it appear in what manner the plaintiff's husband was free from fault, nor what care or diligence was exercised by him to avoid the injury, nor by what right or in what capacity he was upon the track at the time of the injury, nor how near he was to a public road crossing, nor does it appear whether he was walking, sitting, standing, or lying upon the track, and the allegation that he was free from fault was merely the conclusion of the pleader.
The demurrer was overruled, and the defendant filed exceptions pendente lite. The case proceeded to trial, and resulted in a verdict in favor of the plaintiff for $5,000. The motion for a new trial, filed by the defendant, was overruled, and in its bill of exceptions it assigns as error each of the rulings just stated. The plaintiff, while the suit was pending, intermarried with Brandenburg, and the suit is now proceeding under the name so acquired by her.
Lawton & Cunningham and H. W. Johnson, for plaintiff in error.
A. Herington, H. B. Strange, and Evans & Evans, for defendant in error.
The special demurrer to the petition, as amended, raises numerous questions. We all agree that some of the grounds of the special demurrer were not well taken. We are not agreed as to the proper decision of the other questions raised by the demurrer. Those matters upon which we are agreed, and which require special notice, will be first dealt with. The special demurrer raises objection that the mere allegation that the deceased was free from fault is too general, and that the facts which show such freedom from fault should have been set out. In Allen v. Augusta Factory, 82 Ga. 76, 8 S.E 68, Mr. Chief Justice Bleckley said: "The allegation that the deceased was without fault is too general, and too much in the nature of a legal conclusion, to serve as a substitute for the proper allegation of his want of knowledge." It is to be noted that in that case freedom from fault depended largely upon want of knowledge on the part of the plaintiff, and, of course, this was a matter peculiarly within the knowledge of the plaintiff himself, and therefore he should not be allowed to place himself behind merely a general allegation, when it was so easy for him to make a specific averment. In the cases of Central R. Co. v. Hubbard, 86 Ga. 623, 12 S.E. 1020, and Georgia R. Co. v. Rayford, 115 Ga. 937, 42 S.E. 234, it was held that, as against a general demurrer, an allegation that the plaintiff was without fault was sufficient. See, in this connection, Pierce v. Seaboard Air Line Ry., 122 Ga. 664, 50 S.E. 468. It is to be...
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