Ga. Power Co v. Murray

• Decision Date: 20 December 1937
• Docket Number: No. 26311.,26311.
• Parties: GEORGIA POWER CO. v. MURRAY.
• Court: Georgia Court of Appeals

57 Ga.App. 141

194 S.E. 403

GEORGIA POWER CO.

v.MURRAY.

No. 26311.

Court of Appeals of Georgia,

Division No. 2.

Dec. 20, 1937.

Syllabus by the Court.

1. Under the allegations of the petition, none of the four counts set out a cause of action under the rule as laid down in Greenfield v. Watson, 54 Ga.App. 9, 187 S.E. 183, dealing with the principle of "slight deviation" in such cases.

2. Furthermore, the plaintiff shows by the allegations of her petition that her deceased son's injury and death were the result of his own negligence.

3. The court erred in overruling the general demurrer of the defendant.

STEPHENS, P. J., dissenting.

Error from City Court of Oglethorpe; W. M. Harper, Presiding Judge.

Action by C. M. Murray against the Georgia Power Company. To review an adverse judgment, defendant brings error.

Reversed.

This is a suit by Mrs. Cordelia M. Murray, in which she seeks to recover of the Georgia Power Company damages for the alleged tortious homicide of her son, who at the time of his death was thirty-one years of age with an earning capacity of $2,500 per year, and on whom she was partially dependent for support, and who contributed to her support by superintending her farm and performing labor thereon, all of which was of substantial value to her, alleged to have been caused by the negligence of the defendant in maintaining on its land, adjacent to the public highway over which the son at the time of his death was traveling in an automobile, and artificial lake or body of water "so near the highway and so located relative to the same * * * that travel thereon was rendered unsafe, " and in failing to erect guards or rails along that portion of the lake or body of water contiguous to the highway so that travelers in the exercise of due diligence could not fall or be precipitated into the lake or body of water, and in failing to place a sign to warn travelers of the dangerous and deceptive condition of the lake, dam, and curving roadway, which acts were "so gross as to amount to wanton and wilful negligence."

The plaintiff's petition was brought in four counts, in each of which as amended it was alleged as follows: The defendant, Georgia Power Company, "maintains an artificial lake or pond, the eastern boundary of which is the public road and a public bridge built of concrete which spans said Whitewater Creek, the said dam being approximately one hundred and seventy five feet long and eighteen feet wide, that the public road and the dam were being used by said Georgia Power Company to aid in impounding the waters of its artificial lake or pond, and the public highway at that point being one and the same area"; that "a point 122 feet from the south end of the concrete bridge the highway had a traversable width of 42 feet, at which point the highway and the dam begin to be the one and the same; that on the left of the traversable part of the embankment there is a slope down to the waters of said lake or pond, which embraces a varying width of from 7 to 10 feet, and the edge of which slope on the day of the death of the said Murray was covered with evergreen brush and small trees"; that "the width of said highway of 42 feet continues to be the same until it reaches a point 18 feet from the south end of the concrete bridge structure; but at that point the width suddenly and abruptly narrows from 42 feet to 19 feet 2 inches, all in a short space of 18 feet; that at this point 18 feet from the south end of the bridge the embankment upon which is located the roadway veers out so as to cause the left part of the road to project and to jut out into the lake; that the roadway turns suddenly and abruptly to the right and runs a distance of 15 feet 6 inches to the southwest corner of the bridge where it connects with said corner at an angle of 120 degrees; that this part which was jutting out into the lake or pond and widening beyond the width of the embankment at the bridge was put there by the predecessor in title to the Georgia Power Company, viz: the Montezuma Power Company, or some such company whose name is unknown to your petitioner, in or about 1922, and was on February 12, 1936, maintained, kept, and owned by the Georgia Power Company; that from the point 122 feet from the south end of the said concrete bridge structure to the said concrete bridge structure the roadway continues practically straight until it reaches the south end of the said concrete bridge structure so that the operator of a vehicle following a straight line of travel used on said highway from such point 122 feet from the south of the bridge would miss the bridge entirely and would project himself and his vehicle into the lake where the portion of said roadway suddenly and abruptly turns to the right leading upon said concrete bridge structure; that on the date of the death of the deceased there were no guard rails, fences, or barriers of any character or description on the portion of the highway on the dam above described, but that said concrete bridge proper did have concrete sides to it; that the slope going down to the water of the lake on the left side of the roadway on the date of the death of the deceased was covered with evergreen bushes and small evergreen trees which hid any suggestion to a traveler at night that there was any water on the left of said dam or that there was any narrowing of the roadway to turn suddenly and abruptly to the right to connect with the southwest corner of the concrete bridge structure; that this unusual and deceptive situation of the roadway on the embankment described in the foregoing paragraphs presented to a driver of a vehicle approaching at night from the south end of said embankment a condition which caused him to assume that the width of the road would continue to be 42 feet, and that the roadway would continue to be straight and that it would not turn suddenly and abruptly to the right to the concrete bridge structure; that contiguous to the embankment on the immediate left of such embankment the water of said lake has a varying depth of from ten to thirty feet; and that at the point where the roadway suddenly and abruptly narrows as above mentioned the depth is 30 feet"; that "to the south of this artificial lake or pond of the Georgia Power Company there is a series of winding curves on said highway and the one nearest to said lake or pond winds down and around the hill at such a grade that an automobile could coast down without any power to the bridge"; that "on February 12, 1936, at about 10:30 P. M., the said Thomas D. Murray approached said embankment from the south and drove his automobile along the highway located on the dam or embankment and came to the point described above where the roadway suddenly and abruptly narrows from 42 feet to 19 feet, two inches, and turns to the right"; "that when the said Thomas D. Murray reached this point his automobile instead of being guided to the right at such sudden and abrupt curve at such narrowing of the roadway went straight ahead and to the west of the said concrete bridge structure and it went into that part of the lake which projects itself abruptly and directly in front of that part of the public road on which the automobile was moving; that as a natural and proximate consequence he then and there met his death by being trapped inside of his automobile in 30 feet of water of the said lake, his body being removed therefrom some 15 days later."

In the first count the plaintiff alleges that "the course that the automobile took into the lake was in no way controlled or directed by the said Murray; but it was caused by the sudden and involuntary falling asleep of the said Murray." In the second count the plaintiff alleges that "the course that the automobile took into the lake was in no way controlled or directed by the said Murray, but it was caused by an uncontrollable and unanticipated attack of some illness unknown to your petitioner which caused him to lose consciousness." In the third count the plaintiff alleges that "the course that the automobile took into the lake was in no way controlled or directed by the said Murray; but it was caused by his inadvertently and accidentally losing control of such ofhis faculties as are needed to drive an automobile safely along such roadway." In the fourth count the plaintiff alleges that "the course that the said automobile took was due to the driver being deceived by the deceptive appearance of the roadway suddenly and abruptly narrowing as aforesaid, and the sudden and abrupt turning to the right to go upon the concrete bridge structure."

The defendant filed general and special demurrers to the petition in four counts, as amended. The defendant specifically demurred on the ground that there was no allegation in any count of the petition that the deceased, Thomas Murray, "did not have perfect acquaintance with the condition complained against and all incidents of the same, " and that it appears from the petition "that the defendant is an alienee of the property described in the petition, and there is no allegation that anything has been done by the defendant to increase the alleged nuisance, if any, nor does it appear that there has been a notice to the defendant to abate the nuisance, if any." Count 4 of the petition was specifically demurred to on the ground that it contained no allegation that the defendant did not keep fully lighted the area into which the deceased ran his automobile, and that by reason of this omission there was alleged no negligence against the defendant. The court overruled all the demurrers, and the defendant excepted.

Jule Felton, of Montezuma, Foley & Chappell, of Columbus, and Colquitt, Mac-Dougald, Troutman & Arkwright, of Atlanta, for plaintiff in error.

Gilbert C. Robinson, of Montezuma, and Grice & Grice, of Macon, for defendant in error.

PER CURIAM.

1. The gist of the action in the present case is that the defendant was negligent in failing to provide barriers to...