Cowart v. Savannah Elec. Co.

• Decision Date: 20 February 1909
• Parties: COWART v. SAVANNAH ELECTRIC CO.
• Court: Georgia Court of Appeals

63 S.E. 804

5 Ga.App. 664

COWART v. SAVANNAH ELECTRIC CO.

Court of Appeals of Georgia

February 20, 1909

Syllabus by the Court.

The petition set forth a cause of action, and should not have been dismissed.

[Ed Note.-For other cases, see Street Railroads, Dec. Dig. § 110 ^[*]]

Neither a paragraph in a petition, nor an allegation therein which constitutes only a portion of a paragraph should, upon special demurrer, be stricken for defects not specified by such demurrer.

[Ed Note.-For other cases, see Pleading, Cent. Dig. § 520; Dec Dig. § 209. ^[*] ]

Error from City Court of Savannah; Davis Freeman, Judge.

Action by J. N. Cowart against the Savannah Electric Company. Judgment for defendant, and plaintiff brings error. Reversed.

Oliver & Oliver, for plaintiff in error.

Osborne & Lawrence, for defendant in error.

RUSSELL J.

The court below dismissed the plaintiff's petition, and also sustained certain special demurrers thereto in a single order. We do not know from the record whether the plaintiff offered to amend in response to the special demurrers or not before the judgment sustaining the general demurrer was entered, but we assume from the form of the order that the general and special demurrers were considered together by the court, and that the court was of the opinion that whether the special defects pointed out by the special demurrers could be cured or not the material allegations of the petition failed to set forth such a cause as could entitle the plaintiff to a recovery.

We think that the general demurrer should have been overruled. According to the plaintiff's petition, he was driving a wagon on a public street, and was approaching a public crossing. The defendant's car, which had been running very rapidly, slowed up, and the motorman signaled him as if he were going to stop. The plaintiff accordingly started to go across the street car track, when the motorman carelessly dropped his controller and the car suddenly bounded forward overtook him before he had crossed, and injured him. It is possible that some of the allegations are subject to special demurrer, and as to some of the special demurrers it is also true that they themselves are demurrable. But while the court could rightly direct the plaintiff to amend in response to the special demurrers which he might sustain, or upon failure to amend, to strike the defective allegations where the defect is specifically pointed out by the demurrer, still, should those paragraphs which are specially demurrable be stricken, enough would still remain to enable the petition to withstand the general demurrer. It may be that the paragraph alleging that the motorman signaled the plaintiff that it was his purpose to stop the car and permit him to cross is subject to special demurrer, but it is not subject to the special demurrer filed, to wit, that "the petition is defective in that it does not state or describe the directions given by the motorman to the plaintiff to cross the track, and because the acts which the petitioner claims gave him permission to cross the track could not bear that construction by a man in the exercise of ordinary care." In our opinion, the acts of the motorman, as described, might have led the plaintiff to believe that the car was going to stop, and, certainly, whether the conduct of the motorman and the surrounding circumstances would be construed by a man of ordinary care as notice for him to cross is a question for the jury. As to whether the motorman should have rung a bell or sounded a gong as he approached the crossing in question, under the circumstances detailed by the plaintiff, is, for the reasons stated in Cordray v. Savannah Electric Co., 5 Ga.App. 625, 63 S.E. 710, likewise, a jury question. Omitting any consideration of the other allegations of negligence, we think the plaintiff should clearly have been allowed to go to the jury upon the allegation that his injury was caused by the motorman "in removing the controller handle from the controller and thus losing control of the current of electricity which operated the car while said car was in close proximity to the wagon." The defendant would have been entitled to know, if he had demurred upon that ground, exactly what the plaintiff meant by "close proximity to the wagon," but the statement of the petition that the motorman was negligent "in removing the controller handle from the controller and thus losing control of the current of electricity which operated the car, while said...