Grady County v. Banker, 33023

• Citation: 59 S.E.2d 732,81 Ga.App. 701
• Decision Date: 08 May 1950
• Docket Number: No. 2,No. 33023,33023,2
• Parties: GRADY COUNTY et al. v. BANKER
• Court: United States Court of Appeals (Georgia)

Page 732

59 S.E.2d 732

81 Ga.App. 701

GRADY COUNTY et al. v. BANKER.

No. 33023.

Court of Appeals of Georgia, Division No. 2.

May 8, 1950.

Rehearing Denied June 7, 1950.

Syllabus by the Court.

1. Although one of the specifications of negligence contained in the petition may be insufficient to show a breach of any legal duty, yet where the other specifications of negligence are sufficient, and are supported by the evidence, it is not error for the trial court to submit to the jury all the issues, no demurrer having been interposed to the petition. See Macon Consolidated Street Railroad Co. v. Barnes, 113 Ga. 212(5), 38 S.E. 756.

2. The charge of the court must be construed as a whole and, when so construed, the charges relating to comparative negligence and lack of ordinary care on the part of the plaintiff contain no error requiring a reversal of this case.

3. Citizens of this State are presumed to be cognizant of the laws thereof. Therefore, where the judge refers to a law in his charge, in the absence of any special statute to the contrary, it is not prejudicial to thus tell the jury what they are already presumed to know.

4. It is never error to refuse to direct a verdict.

5. In cases where a verdict is demanded by the evidence, error in the charge will not work a reversal. Likewise, where a finding on one of the issues of the case is demanded as a matter of law, error in failing to charge on such issue is harmless to the complainant.

6. 'It is the duty of proper county authorities to construct and maintain bridges across streams in a workmanlike and proper manner, so that any person may use them with safety, in ordinary travel, but this duty is not one of extraordinary care and diligence, nor does its exercise extend to extraordinary occasions, beyond the ken of general experience. The law does not make the county authorities insurers of the safety of any of those who use bridges.' Stamps v. Newton Co., 8 Ga.App. 229(5), 68 S.E. 947.

7. The verdict is supported by the evidence. It has the approval of the trial court, and will not be disturbed by this court.

The defendant-in-error, L. Eugene Banker, hereinafter referred to as the plaintiff, brought suit in the City Court of Cairo against the plaintiff-in-error, Grady County, herein referred to as the defendant. This action is based on Code, § 95-1001 relating to county liability for the construction and maintenance of defective bridges. According to the allegations of the petition the plaintiff was on September 24, 1948, operating his automobile in a southerly direction between the cities of Pelham and Cairo and within the limits of Grady County on Highway No. 93, jurisdiction over which had previously been assumed by the State Highway Department of Georgia; that in the car with plaintiff was his wife and three small children; that without any knowledge on the part of the plaintiff, the Highway Department had previously constructed on said highway in place of a bridge that had washed out during a flood, a narrow temporary bridge known as a 'Bailey Bridge' which was constructed in such a way that it was approximately 2 1/2 feet above the road level on each side with sharp and dangerous ramps extending from the road level at each end of the bridge up to the level of the bridge floor; that he could not and did not detect this difference in the level of the bridge and the level of the road until he was approximately 50 feet from the bridge; that at that time he had already reduced speed from approximately 50 to approximately 40 miles per hour; that upon entering the bridge his automobile bounced in such way as to cause three of his tire tubes to blow out and cause his automobile to turn over in a ditch alongside the road some distance south of the bridge; that by reason of this upset of his automobile it was damaged in the sum of $1,005; that the plaintiff himself was thereby required to spend the sum of $20 for medical treatment, and that he suffered severe physical pain for which he alleges he is entitled to recover the sum of $4,000. The answer of the defendant, in which the material allegations of the petition were denied and in which it is contended that the injuries and damages sustained by the plaintiff, if any, were due to his negligence and not to any negligence on the part of the defendant in the construction and maintenance of the bridge in question, was signed by the Attorney General and three Assistant Attorneys General of this State, as well as the County Attorney, in accordance with Code, § 95-1710 which provides among other things that the county may vouch the Highway Department into court to defend the litigation. On the trial of the case the jury returned a verdict for the plaintiff in the sum of $2,525 and judgment was accordingly entered.

The defendant thereafter filed a motion for a new trial based on the general grounds which was later amended by adding 10 special grounds numbered 1 to 10 inclusive, and the judgment of the trial court overruling this motion is assigned as error.

Eugene Cook, Atty. Gen., W. V. Rice, Asst. Atty. Gen., Gam D. Dorsey, Asst. Atty. Gen., Geo. T. Smith, Cain & Smith, Cairo, for plaintiff in error.

Ira Carlisle, Cairo, for defendant in error.

TOWNSEND, Judge (after stating the foregoing facts).

1. Special grounds 1 and 2 contend that the trial court erred in submitting to the jury the issue of whether or not the defendant was negligent in failing to post signs along the highway to warn the plaintiff and others similarly situated of the condition of the bridge in time for the speed of motor vehicles to be sufficiently reduced to avoid injury and damage. Special ground 9 contends that the trial court erred in failing to instruct the jury that such signs and warnings should be considered only upon the question as to whether or not the plaintiff was guilty of negligence which contributed to an injury or such as amounted to lack of the exercise of ordinary care on his part. One paragraph of the petition alleges that there were no signs or warning signals posted at the bridge or near the approaches thereto so as to give the plaintiff any notice of the existing condition of the bridge and its approaches. Another paragraph of the petition in part contends that the injuries and damages to the plaintiff and his property proximately resulted from certain specified acts of negligence, included among which is the specification of failing to post adequate warnins as to the dangerous condition of the bridge and its approaches. Both these allegations of the petition were categorically denied by the answer and thus the issue thereon was joined. Neither a county nor the State Highway Department when it had assumed jurisdiction over a State Aid Road located in such county, is under a legal duty to post warning signs on the approaches to its bridges. Warren County v. Battle, 48 Ga.App. 240, 243, 172 S.E. 673; Wilkes County v. Tankersley, 29 Ga.App. 624, 116 S.E. 212; Smith v. Colquitt County, 37 Ga.App. 222, 139 S.E. 682. This omission on the part of the defendant, therefore, is not such negligence as authorizes a recovery. However, there are other acts of negligence specified which, if supported by the evidence and found by the jury to be true, are sufficient to support a verdict for the plaintiff. The defendant interposed no demurrer to the petition. In Reeves, Trustee, v. Jackson, 113 Ga. 182(1), 38 S.E. 314, it is held as follows: 'When a defendant goes to trial without demurring to [a] petition no question as to its legal sufficiency is before the court.' Both the plaintiff and the defendant in the instant case introduced evidence regarding signs, which evidence was authorized by the allegations of the petition and the denial thereof as contained in the answer. In Savannah, Fla. and Western Ry. Co. v. Ladson, 114 Ga. 762(1), 40 S.E. 699, it is held as follows: 'When a defendant by his answer joins issue with the plaintiff without demurring to the petition, it is not erroneous for the court to instruct the jury that if the plaintiff proves his case as laid he is entitled to recovery.' See Flewellen v. Flewellen, 114 Ga. 403, 40 S.E. 301, and cases there cited, Macon Consolidated State Railroad Co. v. Barnes, 113 Ga. 212(5), 38 S.E. 756. It is not the duty of the trial court to determine the sufficiency of every allegation contained in the petition of a plaintiff where it has not been tested by demurrer and while this specification of negligence, even if proved, could not support a verdict for the plaintiff, yet under the authorities herein cited, the trial court did not err in any of the particulars of which complaint is here made. Counsel for the defendant relies on Central of Ga. Ry. Co. v. Keating, 177 Ga. 345(4-b), 170 S.E. 493, wherein it is held as follows: 'The court erred in charging the jury that the plaintiff would be entitled to recover if he proved any one or more of his alleged grounds of negligence, where one of such grounds did not constitute a legal basis for a recovery.' However, an examination of that case reveals that a demurrer was interposed to the part of the petition thus alleging an insufficient ground of negligence. The Supreme Court held that the trial court erred both in overruling the demurrer and in charging the jury in the manner indicated by the foregoing quotation from that case. The allegation that there were no signs is a proper pleading because the same is material to show lack of contributory negligence on the part of the plaintiff. See Haralson County v. Hamrick, 41 Ga.App. 196, 152 S.E. 583, but, as stated, is an insufficient specification of negligence to support an action on the part of the plaintiff. Special grounds 1, 2 and 9 are without merit.

2. Special ground 3 contends that the trial court erred in failing to charge that if the plaintiff by ordinary care could have avoided the consequences to himself of the negligence of the defendant he would not be...