Cochran v. Wadley Southern Ry. Co, 21623.

• Decision Date: 08 October 1931
• Docket Number: No. 21623.,21623.
• Citation: 160 S.E. 706,44 Ga.App. 208
• Parties: COCHRAN v. WADLEY SOUTHERN RY. CO.
• Court: Georgia Court of Appeals

44 Ga.App. 208

160 S.E. 706

COCHRAN

v.WADLEY SOUTHERN RY. CO.

No. 21623.

Court of Appeals of Georgia, Division No. 1.

Oct. 8, 1931.

Syllabus by the Court.

The petition in this case failing to show that the alleged negligence of the defendant was the proximate cause of the plaintiff's injuries, the court did not err in sustaining the general demurrer and dismissing the petition.

Error from Superior Court, Emanuel County; R. N. Hardeman, Judge.

Action by H. G. Cochran against the Wad-ley Southern Railway Company. Judgment for defendant, and plaintiff brings error.

Affirmed.

Alfred Herrington, Jr., of Swainsboro, for plaintiff in error.

A. S. Bradley and A. S. Bradley, Jr., both of Swainsboro, for defendant in error.

LUKE, J.

The only question presented by the record in this case is whether or not the trial judge erred in sustaining the general demurrer to the petition.

Omitting some of its formal allegations, the petition brought by H. G. Cochran against Wadley Southern Railway Company alleges, in substance:

The defendant leased to the Pan-American Petroleum Corporation a certain lot on the eastern side of the right of way of the defendant and adjacent thereto for a wholesale storage and distribution plant for gasoline, kerosene, and oils, and a warehouse for the storage of trucks.

Said lot "was located on a curve in said railway between a branch fifty feet approximately on the south side, and the said cotton gin aforesaid on the northwest side."

On said lot there was a private road running in a westerly direction across the lot and the right of way of said railroad into Coleman, or Railroad street, over which said Pan-American Petroleum Corporation "had a right to convey its gasoline, kerosene and oils."

Said private road was the only road over which said Pan-American Corporation could convey its products to market.

"Said Pan-American Petroleum Corporation and its agents and employees had an easement over said right of way and said railroad by said private way for the purpose aforesaid, which was necessarily incidental to their said lease, which was well known to the defendant."

On June 18, 1928, the plaintiff was an agent of said petroleum company, and manager of its said plant and warehouse.

On the east side of said right of way, the defendant had a private telephone line, on each side and in front of said lot leased to said petroleum company.

The defendant allowed said line to "sag and be in a loose condition" in front of said lot, but said condition was not known to the plaintiff, for the reason that the heavy foliage of a line of pecan trees on the front of said lot "hid from view the loose and sagging condition of said line."

"Said line was allowed to be in said condition by the negligence or lack of ordinary care of the defendant."

"The condition of said line could have been known by the defendant by the exercise of ordinary care."

On June 18, 1928, the plaintiff, as manager of said petroleum corporation, sent a colored truck driver with a truck full of gasoline for market over said private road and across said right of way, "when, to the surprise of petitioner, said wire caught under the handle of the filler-cap of the front compartment of said tank."

"Said occurrence was caused by the said loose condition and sagging of said wire, due to the said lack of ordinary care of the said defendant."

"Said occurrence caused the said truck to stall, or stop, suddenly and immediately upon the railroad track of said defendant."

Paragraph 17. "When said truck stopped as aforesaid, petitioner, as was his duty, rushed forward, endeavoring to disentangle the said wire from said filler-cap handle, and for said purpose mounted said truck."

Paragraph 18....