Georgia Railroad & Banking Co. v. Sewell

• Decision Date: 09 March 1938
• Docket Number: 26655.
• Citation: 196 S.E. 140,57 Ga.App. 674
• Parties: GEORGIA R. & BANKING CO. et al. v. SEWELL.
• Court: Georgia Court of Appeals

196 S.E. 140

57 Ga.App. 674

GEORGIA R. & BANKING CO. et al. v. SEWELL.

No. 26655.

Court of Appeals of Georgia, First Division

March 9, 1938

Rehearing Denied March 29, 1938.

On Motion for Rehearing.

Syllabus by the Court.

1. While a traveler is charged with the assuming of the ordinary risks of attempting to pass through an underpass or viaduct yet he does not assume the danger occasioned by defects in the construction thereof, which defects are unknown to him and not discoverable by mere observation.

2. Under the allegations of the petition it was proper to submit the question of the liability of the defendants to the jury to determine whether the defendants were guilty of negligence not discoverable by the plaintiff in the exercise of ordinary care, whether the injury was occasioned by the attempt to traverse the underpass which had a clearance of ten feet and four inches on the south end (the point of entrance), and nine feet five inches at the north side (the point of exit) and whether this was the result of an improper, unusual, and dangerous method of construction of the underpass, or whether, on the other hand, the plaintiff knew of such construction, or whether the liability to injury was such a natural result of the construction of the underpass as to charge the plaintiff with notice thereof when he attempted to pass thereunder.

3. "It is regularly necessary in pleading to state nothing except facts, and as the case may be, conclusions from them or in any other words, nothing except facts as they really exist, or are, by legal fiction or presumption, deemed to exist." Gould on Pleading, 6th Ed., 200.

4. The general averment, which is set forth for the purpose of obtaining a decision of the court thereon, will be construed to have reference to the special facts pleaded; and, if the special facts upon which this averment is based are set forth in the petition and warrant such a conclusion, the general averment is not subject to the special demurrer.

5. Where the suit sounds in tort and the contract is pleaded merely as an inducement, it is not necessary to set out the contract with as much particularity as would be required if the suit had been upon the contract.

6. Where the duty is owed to or for the benefit of individuals composing the public, failure to perform said duty gives rise to a cause of action in favor of any one of the public injured by such failure.

7. The judge did not err in overruling the general and special demurrers.

Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.

Personal injury action by James Sewell against the Georgia Railroad & Banking Company and others. To review a judgment overruling general and special demurrers, defendants bring error.

Affirmed.

BROYLES, C.J., dissenting.

W. Neal Baird and Neely, Marshall & Greene, all of Atlanta, for plaintiffs in error.

Harwell & Harwell, of Atlanta, for defendant in error.

MacINTYRE Judge.

The petition of James Sewell, the plaintiff, alleged, paragraph 14: "That on or about March 21, 1936, petitioner was riding in a truck of the Capital Freight Lines driven by a young man named Mullins. Said truck was being driven northward on Powell Street in the City of Atlanta, said State and County, and when the said truck approached the south entrance of the railroad viaduct on said Powell Street, the truck was stopped, and petitioner and the driver got out and looked to see if the truck would clear or pass under the viaduct, and seeing that the top of the truck would clear the overhead beams of the viaduct about 8 inches, and assuming that it would also clear at the north end of the said viaduct since it cleared at the south end, the truck proceeded northward through the underpass, but as it was proceeding out of the north end of the underpass, the top of the truck was caught by an overhead beam and stopped suddenly and violently, and petitioner was thrown against the windshield and against a metal part thereof and seriously, dangerously, and permanently injured as hereinafter stated."

Paragraph 15: "That said underpass measured vertically from the beam overhead to the street at the south end 10 feet four inches, and at the north end 9 feet 5 inches, and thus the north end of the underpass vertically was narrower than the south end by 11 inches, and thus caused the truck to be jammed or caught between an overhead beam at the north end and the street as alleged, and suddenly and violently stopped as alleged."

Paragraph 16: "That there was no warning sign to indicate or mark the height of the underpass at either the south end or north end and there was nothing to indicate the height of trucks which would clear the underpass."

Paragraph 17: "That there was no warning sign at either end of said underpass or elsewhere to give warning that the underpass was narrower vertically at the north end than the south end."

Paragraph 18: "That the driver of said truck and petitioner did not know that the underpass was narrower vertically at the north end than south end, and did not know that the said truck would not clear at the north end of said underpass, and in the premises petitioner and said driver were without fault or negligence."

This paragraph 18 was amended as follows: "That it was not perceptible to said driver and petitioner, [that the truck would not clear at the north end of said underpass was not perceptible] as they proceeded through said underpass on said occasion."

Paragraph 18a: "That said construction and maintenance of said viaduct and underpass created a dangerous trap in said street and highway which was liable and likely to trap and injure travelers upon said street and highway as was done in this instance. Petitioner alleges that it was the duty of the defendants in constructing and maintaining said viaduct and underpass to so construct and maintain them as not to create said dangerous trap in said street and highway thereby making said street and highway unsafe for traveling public."

Paragraph 18b: "That at the time of the construction of said viaduct or bridge and underpass, which passes under said railroad tracks at said point, the said viaduct or bridge and underpass were located within the corporate limits of the City of Atlanta in Fulton County, Georgia, and said Powell Street was at the time of said construction a public street of the City of Atlanta in Fulton County, Georgia, and since said construction, said viaduct or bridge and underpass and Powell Street have been and are now within the corporate limits of the City of Atlanta in Fulton County, Georgia."

Paragraph 18c: "That said viaduct or bridge and underpass were constructed by defendants in the dangerous condition set forth in the petition, and have been since said date of construction maintained by defendants in said dangerous condition set forth in said petition."

Paragraph 18d: "That the said underpass is a part of said Powell Street, and said Powell Street, over which said viaduct or bridge was and is constructed and maintained, is not a State road and has never been designated by the State Highway Department as a State road or State-aid road, and is not a County road within the meaning of the act of the General Assembly of Georgia approved August 23, 1927 (Georgia Acts 1927, page 299), and said act has no application to said viaduct or bridge and underpass, and neither said State Highway Department nor said Board of Commissioners of roads and revenues of said Fulton County, Georgia have any jurisdiction as to said viaduct or bridge and underpass under the provisions of said Act and have never had. Said viaduct or bridge and underpass were constructed a number of years prior to 1927."

Paragraph 18e: "That the said railroad tracks of defendant cross over said Powell Street by means of said viaduct or bridge. Powell Street is approximately 4 blocks long, running North from Fair Street to Decatur Street."

Paragraph 18f: "That said underpass is approximately 200 feet long and there are approximately 12 railroad tracks crossing over said underpass at said point."

Paragraph 19g: "That, according to an agreement dated July 22, 1904 of defendants with the City of Atlanta, touching and permitting the construction of said viaduct and underpass, the underpass was to have a minimum clearance between the surface of the roadway (Powell Street) and the superstructure of eleven (11) feet. The defendants failed to construct said viaduct and underpass with said clearance of eleven (11) feet, the clearance, as said viaduct was constructed, was ten (10) feet four (4) inches at the south end and nine (9) feet five (5) inches at the north end, and petitioner charges negligence against defendants in failing to construct said viaduct with a clearance of eleven (11) feet as per defendants' agreement with the City of Atlanta. If said viaduct and underpass had been constructed with said clearance of eleven (11) feet, the truck on which the petitioner was riding on said occasion would have cleared the superstructure and petitioner would not have sustained said injuries."

1, 2. This cause was sent to the jury on the theory that it is the duty of all railroad companies to "keep in good order at their expense, the public roads or private ways established pursuant to law, where crossed by their several roads, and build suitable bridges and make proper excavations or embankments, according to the spirit of the road laws." Code, § 94-503, Ga.Laws 1838, Cobb 956. There are many cases where the facts stated in the petition may be of such a character as to warrant the judge in deciding as a matter of law that "the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence." Code, § 105-603. A failure...