City of Fairburn v. Cook

• Decision Date: 08 July 1988
• Docket Number: Nos. 76075,76076,76077,76211 and 76212,s. 76075
• Citation: 372 S.E.2d 245,188 Ga.App. 58
• Parties: CITY OF FAIRBURN v. COOK. COOK v. CITY OF FAIRBURN. COOK v. MORELAND, et al. ATLANTA & WEST POINT RAILROAD COMPANY v. COOK et al. COOK v. ATLANTA & WEST POINT RAILROAD COMPANY, et al.
• Court: Georgia Court of Appeals

Page 245

372 S.E.2d 245

188 Ga.App. 58

CITY OF FAIRBURN v. COOK.

COOK v. CITY OF FAIRBURN.

COOK v. MORELAND, et al.

ATLANTA & WEST POINT RAILROAD COMPANY v. COOK et al.

COOK v. ATLANTA & WEST POINT RAILROAD COMPANY, et al.

Nos. 76075, 76076, 76077, 76211 and 76212.

Court of Appeals of Georgia.

July 8, 1988.

Rehearings Denied July 27, 1988.

Certiorari Denied Sept. 16, 1988.

Gary H. Brakefield, Kirby A. Glaze, George E. Glaze, Jonesboro, for City of Fairburn.

Charles H. Ivy, Atlanta, Joseph C. Chancey, Duluth, Harold N. Hill, Jr., Atlanta, for Cook.

Jack H. Senterfitt, Richard T. Fulton, William B. Brown, Atlanta, for Atlanta & West Point Railroad.

SOGNIER, Judge.

James Cook brought suit against the City of Fairburn (the "City"), Atlanta and West Point Railroad Company (the "Railroad"), and numerous other defendants seeking damages stemming from a vehicular accident that left him a quadriplegic. The trial court granted summary judgment in favor of Thomas Moreland and Archie Burnham, two of the individual defendants, and with the exception of the City and the Railroad, the remaining parties were either voluntarily dismissed from the suit or granted summary judgment, and are no longer involved in this case. Upon trial of the suit, the jury returned a verdict in favor of Cook for $2.5 million, the sum to be shared equally between the City and the Railroad. The five appeals and cross-appeals from this case are consolidated herein.

Appellee and his co-worker, Keith Smith, were heading home in Smith's truck along State Route 92 (also known as Campbellton Road), having completed delivery of a lawn mower, when Smith drove the truck under a bridge owned by the Railroad into the intersection of State Route 92 and East Broad Street in the City. A "signal ahead" sign was situated before the bridge; a center traffic light suspended over the intersection by wire and corner signal lights mounted on posts controlled the flow of traffic through the intersection. Smith testified he did not see the "signal ahead" sign and did not see any of the traffic lights at the intersection itself. It is uncontroverted that the truck driven by Smith entered the intersection against the controlling red light, whereupon the truck was hit and appellee received the injury that left him a quadriplegic. The accident occurred on June 19, 1978; appellee was hospitalized until September 15, 1978.

76211, 76212. Atlanta & West Point

Railroad Company v. Cook; and vice versa.

The Railroad contends the trial court erred by denying its motion for judgment notwithstanding the verdict, in that there was no issue for jury determination in regard to the two bases of recovery asserted by appellee against it, negligence and nuisance. We agree and reverse.

1. Appellee's negligence theory of recovery was premised on a breach of the Railroad's duty of ordinary care owed appellee as a member of the public by the Railroad's creation and maintenance of a dangerous condition, i.e., the Railroad's bridge. Appellee asserted that the location, design and configuration of the Railroad's bridge obstructed the driving public's view of the traffic signals, thereby creating a dangerous condition.

The evidence adduced at trial showed that the Railroad constructed the bridge in 1917, replacing a grade crossing on Campbellton Road which led into the pre-existing intersection. The height and width of the underpass was sufficient to allow the unimpeded flow of traffic. The traffic signals controlling the flow of traffic into the intersection were first introduced in the 1950's. The evidence was uncontroverted that the Railroad had nothing whatsoever to do with the installation or positioning of the traffic signals.

The Railroad correctly points out that the installation and maintenance of traffic control devices is a statutorily regulated matter, see OCGA § 32-6-50, long acknowledged as a governmental function, see Englander v. City of East Point, 135 Ga.App. 487, 218 S.E.2d 161 (1975), and that the Railroad is statutorily prohibited from installing traffic control devices on its own. See OCGA §§ 40-6-25 (a); 32-6-51(a). Nothing in OCGA § 32-6-197, cited by appellee, places any duty on a railroad regarding the installation or maintenance of traffic control devices in the area around a railroad underpass. That statute merely references a railroad's duty to maintain the underpass itself, and exempts the railroad from maintaining even the "lighting, drainage and pavement of the public roads thereunder...." OCGA § 32-6-197(c).

The pleadings and evidence at trial established that no dangerous condition was created or maintained by the mere existence of the bridge itself. Rather, the dangerous condition asserted by appellee was created by the installation and maintenance of traffic signals in positions where view of the lights was obscured by the bridge's pre-existing structure. Since the duty to install and maintain traffic control devices is placed exclusively in the government, we cannot agree with appellee's argument that the Railroad can nevertheless be held liable for obscuring a public road, i.e., the traffic signals, when the Railroad was statutorily prohibited from exercising any control over those signals in order to rectify the dangerous condition and when evidence establishes that the structure of the bridge itself created no danger to appellee. The cases appellee cites for the proposition that a private property owner can be held liable for obscuring a public road are thus factually inapposite from the case sub judice in that the items obscuring the plaintiff's view of the public road were improperly positioned. Reliable Transfer Co. v. May, 70 Ga.App. 613, 29 S.E.2d 187 (1944) (truck illegally parked obscured the view of intersection); McKinney & Co. v. Lawson, 180 Ga.App. 550, 349 S.E.2d 763 (1986) (overgrown tree obstructed public pathway); Pollard v. Cartwright, 60 Ga.App. 630, 4 S.E.2d 693 (1939) and Callaway v. Pickard, 68 Ga.App. 637, 642-643 (2), 23 S.E.2d 564 (1942) (obscured view of on-coming trains stated as explanation of why plaintiffs could not see the train, and as descriptive of the locality and environment of the crossing, rather than as allegations of negligence).

The standards for granting a motion for judgment n.o.v. are the same as those governing the direction of a verdict. The motion may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. Johnston v. Bill Fancher & Assoc., 179 Ga.App. 67, 68, 345 S.E.2d 144 (1986). Because the Railroad breached no duty owed appellee in that it neither created nor maintained the dangerous condition that gave rise to appellee's injury, a verdict for the Railroad on the issue of negligence was demanded and the trial court erred by denying the Railroad's motion for judgment n.o.v. Id. at 69, 345 S.E.2d 144.

2. Appellee's remaining claim against the Railroad was based on the premise that the 1917 bridge was constructed in the public right-of-way and thus, as an unauthorized structure under OCGA §§ 32-6-1 and 32-6-51(b), the bridge was a public nuisance. See Smith v. Hiawassee Hardware Co., 167 Ga.App. 70, 305 S.E.2d 805 (1983). Resolution of this issue, therefore, turns on the extent of the public right-of-way acquired by the public from the Railroad.

Appellee asserts that the public right-of-way over the grade level crossing of the Railroad's train tracks on Campbellton Road (State Route 92) extended to the heavens prior to the Railroad's construction of its bridge in 1917, and thus the bridge, as erected and maintained, occupies physical space "used" by the public so as to place it in the public right-of-way. The evidence reflects that the Campbellton Road crossing existed at least since the 1870's (as indicated by deeds with the Railroad as grantor referencing the road in property descriptions) and it is essentially uncontroverted that due to public usage of the crossing, a public right-of-way had arisen either by dedication or by prescription by that time.

However, regardless whether the right-of-way was acquired by dedication or by prescription, we cannot agree with appellee that the right-of-way included the air space now occupied by the Railroad's bridge. As to dedication, the evidence established that there was no express dedication to public use and "[i]n cases of implied dedication, there is no dedication implied beyond the use. [Cits.] When dedication results from mere use and acquiescence, it is not to be inferred that the donor parted with more than the use necessitates. [Cit.]" R.G. Foster & Co. v. Fountain, 216 Ga. 113 119, 114 S.E.2d 863 (1960). Likewise, as to prescriptive easements, " '[t]he true rule as to prescription is, that the right is measured by actual user, and not by capacity for more extended use.' " [Cits.] Goble v. Louisville, etc., R. Co., 187 Ga. 243, 253, 200 S.E. 259 (1938). See Kerlin v. Southern Bell Tel., etc., Co., 191 Ga. 663, 666-670, 13 S.E.2d 790 (1941) and Humphries v. Ga. Power Co., 224 Ga. 128, 129-130(3), 160 S.E.2d 351 (1968) (addition of more telephone lines or power equipment allowed where it appeared the addition would not occupy general area beyond the outer limits of space previously occupied or territorially beyond easement already acquired). We are not persuaded by appellee's argument that the physical space now occupied by the bridge was necessary to the public's "use" of the right-of-way. Although the space "used" by the public included that space necessary to allow safe passage over or under the tracks, the evidence is uncontroverted that the space provided by the bridge for the public right-of-way adequately allows for the safe and unimpeded flow of traffic thereunder. As pointed out above, the traffic lights, insofar as their installation in juxtaposition with the bridge is concerned, are not part of the bridge's structure nor in any degree the...