Lumley v. Pollard

• Decision Date: 15 February 1940
• Docket Number: 27981.
• Citation: 7 S.E.2d 308,61 Ga.App. 681
• Parties: LUMLEY v. POLLARD.
• Court: Georgia Court of Appeals

7 S.E.2d 308

61 Ga.App. 681

LUMLEY v. POLLARD.

No. 27981.

Court of Appeals of Georgia, Division No. 2.

February 15, 1940

[Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

A. L. Miller, of Edison, for plaintiff in error.

A. R. Lawton, Jr., of Savannah, and H. A. Wilkinson, of Dawson, for defendant in error.

SUTTON Judge.

1. Count one of the petition, by allegations of facts fully set forth in the foregoing statement, charges that the defendant, by its negligence, brought about the death of the plaintiff's son, a minor upon whom she was dependent and who contributed to her support. Briefly summarized, the alleged negligence consisted in the defendant's failure to keep and maintain the railroad bridge and its approaches in a condition safe for travelers lawfully thereupon. The only question to be decided is whether, as contended by the plaintiff, the duty with respect to the safety of the bridge and its approaches rested upon the defendant or, as contended by the defendant, devolved upon the State Highway Department of Georgia.

The Code, § 94-503, provides: "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 laws." The Code, § 94-504, provides: "Such crossings shall include the width of land on both sides of the road allowed by charter or appropriated by the company therefor, and as many feet beyond, each way, as is necessary for a traveler to get on and off the crossing safely and conveniently." These provisions of law have long existed, and are to be found in the first Code (1863) under sections 678 and 679, the first having been codified from the act of 1838, approved December 31, 1838. It has been held by the Supreme Court that the duties here enjoined by the legislature, in the exercise of its police power, are continuing duties, and that a railroad's obligation in the premises has not ended merely because it has provided a crossing which is adequate for travelers at the time of its construction, but that the obligation has reference to all future exigencies of travel, and that "the duty of the railroad company to construct and maintain, at its own expense, suitable crossings at the intersection of their railroad with highways, applies as well to highways laid out and opened after the construction of the railway as to those existing prior to its construction." Cleveland v. City Council of Augusta, 102 Ga. 233, 247, 29 S.E. 584, 590, 43 L.R.A. 638. See, also, in this connection Southern Ry. Co. v. Atlanta Ry. & Power Co., 111 Ga. 679, 36 S.E. 873, 51 L.R.A. 125.

"The term 'bridge' includes all the appurtenances necessary to its proper use, and embraces its abutments and approaches" and whatever "is necessary as an approach, to connect the bridge with the highway, is an essential part of the bridge itself." Howington v. Madison County, 126 Ga. 699, 55 S.E. 941; Atlantic Coast Line R. Co. v. Spearman, 42 Ga.App. 536, 540, 156 S.E. 824. "An embankment contiguous to a bridge, and made as a necessary means of access thereto, so as to enable teams and wagons to pass over it, is a part of the 'bridge,' and the authorities charged with using ordinary care for the purpose of keeping the bridge in reasonably safe condition for use by the public in the ordinary modes of travel are under a duty to use a similar measure of diligence in regard to such abutment or approach." Morgan County v. Glass, 139 Ga. 415(4), 77 S.E. 583, 584. In constructing and maintaining a bridge consideration must be had to the physical surroundings and conditions of the highway approaching the bridge. Hardin v. Southern R. Co., 36 Ga.App. 427, 136 S.E. 802; Seaboard Air-Line R. Co. v. Young, 40 Ga.App. 4 (6), 148 S.E. 757; Central of Georgia R. Co. v. Keating, 45 Ga.App. 811, 817, 165 S.E. 873. It is for the jury to determine whether a railroad properly constructs and maintains an approach for such distance on each side of the bridge as to enable a traveler to get on and off the crossing safely and conveniently. Central of Georgia R. Co. v. Dumas, 44 Ga.App. 152 (8), 160 S.E. 814.

It is contended by the defendant in error that under the grade crossing elimination act of 1927 (Ga.L.1927, p. 299), as codified in the Code, § 95-1901 et seq., the public highways of the state are under the sole control and direction of the State Highway Department of Georgia, and that the liability of a railroad for failure to maintain its bridges and approaches safe for travel no longer exists. It has, however been held in Atlantic Coast Line R. Co. v. Spearman, supra, that the provisions of law, Code §§ 94-503 and 94-504, were not repealed by the act creating the State Highway Department and establishing a system of state roads (Ga.L. 1919, p. 242, Code, § 95-1501 et seq. and § 95-1701 et seq.), and in Central of Georgia R. Co. v. Keating, supra, it was held that the grade-crossing elimination act did not take away the duties of the railroad as prescribed in the Code, §§ 94-503 and 94-504. Central of Georgia R. Co. v. Keating, 177 Ga. 345, 170 S.E. 493, Id., 47 Ga.App. 336, 170 S.E. 497. The Supreme Court ruled that as the bridge in question in that case was constructed prior to 1927 and neither the county nor state authorities had taken any steps to bring about its improvement or betterment, the Court of Appeals properly held that in these circumstances the act of 1927 was inapplicable. It was shown in the opinion that sections 8 and 9 of the act, Code §§ 95-1908 and 95-1909, compel this conclusion. The Code, § 95-1908, provides: "Whenever in the judgment of the Department exercised in respect of a State road, or in the judgment of a county board exercised in respect of a county public road, an existing underpass or overpass, constructed prior to the approval of this Chapter, is unsafe or inadequate to serve the traffic for which it was constructed, the Department, when State roads are involved, or the board, when county public roads are involved, may proceed to bring about the improvement or betterment of the existing structure. In any such event the procedure and division of the cost of construction *** shall be as herein set forth in sections 95-1903 to 95-1906 and 95-1909." The Code, § 95-1909, provides: "After the construction of an overpass or underpass, it shall be the duty of the 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 superstructure of all underpasses and overpasses...