Gordon County v. Cochran, 38571

• Decision Date: 10 March 1961
• Docket Number: Nos. 1,No. 38571,2,38571,s. 1
• Parties: GORDON COUNTY v. J. L. COCHRAN
• Court: Georgia Court of Appeals

Page 368

119 S.E.2d 368

103 Ga.App. 412

GORDON COUNTY v. J. L. COCHRAN.

No. 38571.

Court of Appeals of Georgia, Division Nos. 1, 2.

March 10, 1961.

Rehearing Denied March 30, 1961.

Syllabus by the Court

1. Where injuries are sustained because of the negligent maintenance of an overpass over a railroad, the defect being in the paved portion of the floor of the bridge, an action may be maintained against the county if such bridge has been constructed since the enactment of the act of 1927 (Ga.L.1927, p. 299; Code Ch. 95-19), and if the highway upon which such bridge is constructed is a part of the State-aid system (jurisdiction of such road having been assumed by the State), the ultimate liability for such negligence is the State's.

2. A covenant not to sue one tort-feasor will not bar an action against a joint tort-feasor.

James L. Cochran filed an action against Gordon County to recover for injuries sustained when, according to the allegations of the petition, a truck which he was driving careened off a bridge or overpass constructed over a railroad track in Gordon County. It was alleged that the bridge or overpass was constructed in 1928, and that a defect in the floor of the bridge caused the truck to careen off the bridge. Service by second original upon the State Highway Department was prayed for. The defendant demurred generally and specially to the petition and filed a plea in bar. The trial court overruled the general demurrers while reserving its ruling upon the special demurrers, and thereafter overruled the plea in bar. The defendant now excepts to the judgments adverse to it on its general demurrers and on its plea in bar.

Eugene Cook, Atty. Gen., Carter Goode, E. J. Summerour, Asst. Attys. Gen., Harry Lawrence, Calhoun, for plaintiff in error.

Mitchell & Mitchell, D. W. Mitchell, Dalton, for defendant in error.

NICHOLS, Judge.

1. The allegations of the petition as to how the plaintiff's injuries were caused are not set forth in detail inasmuch as the sole contention of the defendant, as to why its general demurrers should have been sustained, is limited to a consideration of the statutes dealing with the upkeep, and liability for lack of upkeep, of bridges over railroad tracks as related to the particular bridge in question. The petition as finally amended was in two counts, count 1 alleging that the bridge was built by a contractor for the county in 1928, and count 2 alleging that it was built by the State Highway Department (either with State employees or by a contractor) in 1928, and both counts alleged that the bridge was a part of U. S. Highway 41 and Georgia Highway 3.

In 1838 the General Assembly enacted a suatute which required that: 'All railroad companies shall 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 law.' Code § 94-503. In 1888 the General Assembly enacted a statute which read in part as follows: 'When the contract for a public bridge * * * is let, the contractor's bond shall be conditioned also to keep it in good repair for at least seven years, and as many more years as may be covered by the contract: Provided, that such contract may be let under existing laws without requiring the aforesaid condition in the contractors' bonds, if in the opinion of the commissioners of roads and revenues, or of the ordinary in counties where there are no such commissioners, it would be to the public interest to dispense with said condition in said bond: Provided, however, that in every case the county shall be primarily liable for all injuries caused by reason of any defective bridges, whether erected by contractors or county authorities.' Code of 1933, § 95-1001. In 1927 the General Assembly enacted a statute, dealing with the elimination of railroad grade crossings, which read in part as follows: 'After the construction of an overpass or underpass, it shall be the duty of the department [State Highway Department] in the case of State roads, and of the county board in the case of county public roads, to maintain at its or their own expense the drainage, surface, and pavement of the highway and bridge, as well as the approaches and guard-rails, if any; except that when an overpass is constructed with a floor of wood, then the railroad or railroads shall maintain such floor. It shall be the duty of the railroad or railroads to maintain at its [or their] expense the foundations, piers, abutments, and superstructures of all underpasses and overpasses located within the limits of its right-of-way.' Code of 1933, § 95-1909. This act further provided for the construction of such underpasses and overpasses jointly by the railroad or railroads involved and the department or county. In 1950 this section of the 1927 act was amended to read: 'Maintenance of overpass or underpass.---- (a) It shall be the duty of the Department in the case of State roads, to maintain all overpasses as defined by section 95-1901, hereafter constructed or which have been constructed or substantially reconstructed since August 23, 1927, even though such overpasses may have been constructed or reconstructed wholly or in part with Federal funds. (b) It shall be the duty of the railroad company or companies to maintain underpasses, as defined by section 95-1901, hereafter costructed or which have been constructed or substantially reconstructed since August 23, 1927, except the lighting, drainage, and pavement of the roadway thereunder which forms a part of the highway or public road. (c) All maintenance herein required by the department shall be at the expense of the Department, and all maintenance herein required by the railroad or railroads shall be at the expense of such railroads: Provided, however, the duty of maintenance imposed upon the Department by this section shall not operate to subject the department to liability on account of damages resulting from any failure of such maintenance. (d) Notwithstanding the foregoing, the duty and obligation of maintaining overpasses on county public roads shall remain and continue as provided by the original section 95-1909 of the Code of 1933, but the burden of maintenance of underpasses on such county roads shall be as provided by this section; and where an overpass on any county road is constructed with a floor of wood, it shall be the duty of the railroad or railroads to maintain such floor at its or their own expense.' Ga.L.1950, pp. 419, 420; Code Ann. § 95-1909. Thereafter, in 1953, the General Assembly amended Code § 95-1001, supra, by adding at the end thereof the following: 'The term 'bridges' in this [Code] section shall be defined as a structure erected to afford unrestricted vehicular traffic over an obstruction in the public highways of the State, including rivers, streams, ponds, lakes, bays, ravines, gullies, railroads, public highways and canals; the term bridge as defined in this section shall include the approaches to the structure previously defined within [fifty] 50 feet of either end of said structure except where the bridge itself measures [one hundred] 100 feet or more and in said event within [one hundred] 100 feet of either end of said structure.' Ga.L.1953, Jan.-Feb. Sess. p. 120; Code Ann. § 95-1001.

The contention of the defendant is that the act of 1838 (Code § 94-503), supra, and the act of 1950 (Code Ann. § 95-1909), supra, are controlling and require a reversal in the present case, while the plaintiff contends that the acts of 1888, as amended by the act of 1953 (Code Ann. § 95-1001), supra, when properly considered together with the act of 1927 (Code § 95-1909), as amended, supra, require an affirmance of the judgment of the trial court.

In the case of Floyd County v. Stewart, 97 Ga.App. 67, 101 S.E.2d 879, it was held that, where a culvert had been removed, and the bridge that was to replace it had not been installed, there was no liability by the county for the plaintiff's injuries. In Jackson v. Meriwether County, 54 Ga.App. 491, 188 S.E. 280, it was held that, where a traveler was injured in 1926 while crossing a defective bridge over a railroad track, which bridge was built under the provisions of the act of 1838 (Code § 94-503), supra, the county was not liable under the act of 1888 (Code § 95-1001), supra, which act did not include bridges over railroad tracks. In Central of Ga. Ry. Co. v. Keating, 177 Ga. 345, 170 S.E. 493, the Supreme Court affirmed the decision of this court with reference to whether the act of 1927 (Code Chapter 95-19), was applicable to a bridge constructed over a railroad track before the enactment of such act and which had not been improved since the enactment of such act. This court had held that the act of 1927, supra, did not apply to bridges over railroad tracks except in cases where the bridge had been constructed after its passage. Central of Ga. Ry. Co. v. Keating, 45 Ga.App. 811, 165 S.E. 873. In Lumley v. Pollard, 61 Ga.App. 681, 691, 7 S.E.2d 308, Judge Sutton, speaking for the court, held in accordance with the Supreme Court decisions that, where a bridge was constructed by a railroad prior to the enactment of the act of 1927, supra, (and no steps had been taken by the Highway Department or county to bring about its improvement or betterment), the act of 1927 placing the duty upon the State or county to maintain the drainage, surface and pavement of the bridge, etc., was not applicable and the duty was still upon the railroad under the provisions of the act of 1838, supra. Applying the above law to the facts in the case sub judice the duty of maintaining the pavement on the bridge in question was not upon the railroad but was upon the public authority that...