Eberhart v. Seabd. Air Line Ry. Co, (No. 16303.)

• Citation: 129 S.E. 2,34 Ga.App. 49
• Decision Date: 14 May 1925
• Docket Number: (No. 16303.)
• Parties: EBERHART. v. SEABOARD AIR LINE RY. CO.
• Court: United States Court of Appeals (Georgia)

34 Ga.App. 49

129 S.E. 2

EBERHART.

v.SEABOARD AIR LINE RY. CO.

(No. 16303.)

Court of Appeals of Georgia, Division No. 1.

May 14, 1925.

Rehearing Granted June 13, 1925.

Judgment Adhered to on Rehearing July 16, 1925.

(Syllabus by the Court.)

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Proximate Cause.]

Error from City Court of Athens; J. D. Bradwell, Judge.

Action by Nellie Eberhart against the Seaboard Air Line Railway Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Miss Nellie Eberhart sued the Seaboard Air Line Railway Company for damages because of personal injuries. The petition alleged:

"Said defendant has a line of tracks running in Athens, in said county, westward toward Atlanta, Ga., and in said Clarke county, Georgia, runs under an overhead bridge on what is known as the Athens-Jefferson road. Said bridge is a wooden structure, about 80 feet long, being a portion of said public highway which is paved with concrete on either side of said bridge. The said public road was in existence before the construction of said railroad, and said bridge was built by, and has been maintained since by, said defendant, Seaboard Air Line Railway Company.

"On April 10, 1924, the said bridge consisted of uprights leading from the level of the railroad track, with stringers thereon, and a plank flooring on said stringers, running for about 80 feet from edge of concrete to edge of concrete on said public highway. Said flooring was between 35 and 40 feet above the level of the railroad track. At this bridge defendant runs through a cut, the bottom of which is about 25 feet across, with banks sloping back towards each end of said bridge. On each side of said bridge there was at said time a railing, supported at intervals of 6 feet, by upright posts extending 40 inches above the flooring. Said uprights were made of pine timbers, being 5x5. At the edge of the flooring said 5x5 were cut back half their width, and the lower part of said uprights nailed to the stringers of said bridge with three nails of 20-penny each. Along said uprights, for the full length of the bridge were nailed planks, being 2x6 and 12 feet long. The top plank was along the upper end of the upright 40 inches from the flooring, and the second plank was midway to said flooring. The only support and bracing which this railing had was an inside brace from the flooring to the upright. This brace was made of 4x4, and was cut away at each end so that the said brace was 16 inches long on the inside of said bridge, and 6 inches on the inside against said upright. This brace was nailed to the flooring on the inside by three 20-penny wire nails, and was nailed to the upright by three 20-penny wire nails. This brace extended out into the flooring proper of the bridge and in the roadway 12 inches, and was nailed to the upright 9 inches above the level of the floor. These braces were nailed to each upright on each side of said bridge at intervals 6 feet apart. There was no support of any kind whatever to said railing from the outside of said bridge.

"There is a slight curve in said bridge, and, in going from Athens to Jefferson, a direct line down the concrete roadway, and the middle of same for a distance of a quarter of a mile, would extend across said bridge about two-thirds of its length, and still further extended would leave the bridge and strike the opposite edge of the cut going towards Jefferson, at about 10 feet from the left-hand side of said bridge going out. At said point, and about 10 feet from the edge of said bridge, and on said defendant's right of way and land, there were on said date two signs—one an advertisement of Exide Battery, and the other an advertisement of H. G. Reid Clothing Company. The Exide sign had been on said right of way at said point for more than 4 years before the date set out herein, and H. G. Reid Clothing Company sign had been at said point for more than 6 months betore said accident, with knowledge and approval of defendant. Both of said signs were facing towards Jefferson. The Exide sign was about 4 feet by 12 feet, with the back of same looking towards Athens, covered with black paint, and the back of the Reid sign being blank tin. On a darknight, with rain on said signs, the back of same would catch the light from the headlights of automobiles going from Athens towards Jefferson, while approaching said bridge, and for a distance of two-thirds across said bridge, and would present the same appearance to the driver of said automobile as the concrete roadway would on such a night and under such conditions leading from the Jefferson end of said bridge.

"On the night of April 10, 1924, Dr. J. P. Proctor, a physician and surgeon of Athens, Ga., was proceeding from Athens towards Jefferson along the roadway as described herein, and reached said bridge between 11 and 12 o'clock p. m. Dr. Proctor had with him, as passengers in said automobile, Miss Irene Day and the plaintiff herein, Miss Nellie Eberhart.

"On reaching said bridge, said automobile traveled across said bridge until the left half hub of the front wheel, or the left-hand front fender on said automobile struck the lower plank of the railing of said bridge at a point 40 feet from the Athens end of the bridge. At the time of said impact, said car was traveling between 20 and 25 miles an hour. The impact caused the left rear of the automobile to swing towards the left side of the bridge, and the next brace towards Jefferson, as hereinbefore described, extending out in the roadway, caught the wheel of said automobile, slinging the weight of the car towards the left of said bridge going out and pushing over said railing away from said bridge and towards Atlanta. The said automobile dragged along the edge of said bridge until just before reaching the Jefferson side of the cut under said bridge, and there struck about 3 feet below the edge of the embankment, and from that point was precipitated to the bottom of the cut and alongside of...