Lee v. Ga. Power Co

• Decision Date: 17 December 1931
• Docket Number: No. 21433.,21433.
• Parties: LEE . v. GEORGIA POWER CO.
• Court: Georgia Court of Appeals

44 Ga.App. 435

161 S.E. 851

LEE .

v.GEORGIA POWER CO.

No. 21433.

Court of Appeals of Georgia, Division No. 2.

Dec. 17, 1931.

Error from Superior Court, Fulton County; G. H. Howard, Judge.

Suit by Brilla Lee against the Georgia Power Company. Judgment for defendant, and plaintiff brings error.

Affirmed.

Florence L. Breen, Geo. G. Finch, and Breen, Finch & Padgett, all of Atlanta, for plaintiff in error.

Colquitt, Parker, Troutman & Arkwright, of Atlanta, for defendant In error.

Syllabus Opinion by the Court.

JENKINS, P. J.

1. The difference between negligence per se and other negligence is in the mode of establishing it. In the one case the law itself establishes negligence when a certain act or omission is proved, while ordinarily the question whether a fact when proved constitutes negligence is left to the determination of a jury. Central of Ga. Ry. Co. v. Larsen, 19 Ga. App. 413, 420, 91 S. E. 517. Where it is sought to establish negligence by showing acts or omissions in violation of a statute of this state, it is not necessary for the plaintiff to plead the statute in order to get the benefit of it. Atkinson v. Hardaway, 10 Ga. App. 389 (6), 73 S. E. 556.

2. In the instant suit against a street railway company for damages on account of injuries alleged to have been sustained when the plaintiff was thrown from an automobile in which she was a passenger, on account of the vehicle's running into a hole left on the right of way of the defendant at the intersection of a public highway, it being alleged that the plaintiff fell from the car upon certain stones left upon the right of way at the point of intersection, it was specifically alleged in the original petition that the defendant had allowed "numerous large granite stones to remain on the street and on their right of way at this point, which said stones petitioner alleges were negligently and carelessly allowed to fall on the ground from the defendant's street cars, " and that the defendant was guilty of negligence In "allowing large granite boulders to drop from their street cars and remain on a public thoroughfare where their right of way crosses the same." It was further alleged in the original petition that the defendant was guilty of negligence in failing to keep its right of way at the point where it crossed the public street in good order as "provided by Code sections 2672 and 2673 of Michie's Code of Georgia of 1926." Since any proof the plaintiff might have had relative to the alleged presence...