Lumley v. Pollard
| Decision Date | 15 February 1940 |
| Docket Number | No. 27981.,27981. |
| Citation | 7 S.E.2d 308 |
| Parties | LUMLEY. v. POLLARD. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. Count one of the petition set forth a cause of action for the homicide of the plaintiff's son, and the court erred in sustaining the grounds of the defendant's general demurrer thereto.
2. Under count two of the petition recovery was sought only for damages because of the mutilation of the body of the deceased after the homicide, and inasmuch as the acts of the defendant were not shown to have been wilful and wanton, no cause of action was set forth in this respect, and the court properly sustained the grounds of the defendant's general demurrer to this count.
Error from Superior Court, Quitman County; C. W. Worrill, Judge.
Suit by Mrs. Ida S. Lumley against H. D. Pollard, as receiver of the Central of Georgia Railway Company, for death of plaintiff's son and mutilation of his body. To review a judgment for defendant after a general demurrer to the petition was sustained, plaintiff brings error.
Reversed.
Mrs. Ida S. Lumley brought suit against H. D. Pollard, as receiver of the Central of Georgia Railway Company; the petition in two counts as amended alleging substantially as follows: Count one alleged that the plaintiff was the widow of Jimmy G. Lumley, deceased, who left at his death a son of himself and the plaintiff, who was named Bill Jackson Lumley and who was seventeen years of age on September 26, 1937, and would have become eighteen years of age on October 13, 1937; that he was killed on the night of September 26, 1937, because of the negligence of the defendant as hereinafter set out, and at the time of his death was employed at $12 per week, in addition to going to school, and with his employer was taking certain training which in two years would enable him to earn $200 per month, and was her sole dependence and was contributing to her support twenty-five to fifty cents per day and was rendering services in connection with her household duties; that his burial expenses were $300; that he had an expectancy of 42.87 years; that Billy Lumley, her son, together with George Rogers, was riding in an automobile with Jack Garrett, at the time of the son's death, at the invitation of Garrett, who was sitting on the front seat of the car and driving it, George Rogers sitting on the right side on the front seat, and plaintiff's son sitting between them; that all three of the occupants of the automobile lived in Arlington, Georgia, and on September 26, 1937, went therefrom to Eufaula, Alabama, and were returning home by Georgetown and Fort Gaines and had passed through Georgetown and were traveling on the highway leading from Fort Gaines to Georgetown and known as highway No. 39, which intersects with state highway No. SO leading from Cuthbert to Georgetown at a point east of Georgetown approximately one and one-half miles; that the Central of Georgia Railway leading from Cuthbert to Georgetown lies south of said state highway No. 50 in the County of Quitman and crosses the state highway No. 39, leading from Fort Gaines to Georgetown, a mile or more south of state highway No. 50; that it is the duty of 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; that state highway No. 39 is a public highway kept up and worked by the state of Georgia and was on September 26, 1937, but said bridge and its approaches were constructed prior to the act of 1927, which provided for the elimination of bridge (grade) crossings, and has not been improved or bettered since said act, and the said receiver has not bettered or improved the same since its construction or since his appointment as receiver of said railroad but has maintained it in the same condition as constructed by the Central of Georgia Railway Company; that all of the acts charged to the railroad company herein are likewise charged to the said receiver of said railroad company in the maintenance of said bridge and its approaches thereto, as well as in the operation of said railroad by him as receiver; that the bridge across said railroad on said highway No. 39 is a railroad bridge and is kept up by the defendant, and its approaches thereto are so maintained, and it is the duty of the defendant to construct the approaches to said bridge across the railroad so that there would be no sharp curve in the road at the approach to the bridge and the bridge and railroad not be concealed from a traveler over said highway approaching the bridge, and the bridge and its approaches not increase the hazard in the use of the bridge by travelers in vehicles as they turn the sharp curve on the road onto the bridge; that it is also the duty of the defendant to construct the approaches to said bridge so that the road at said point would not be wider than the bridge and would not be constructed in such a way that its width would be misleading to travelers thereon, and the railroad cut in which the railroad is situated, as well as the bridge across the same, would be open and exposed to view of travelers approaching the bridge in the night as well as in the daytime; that it is the duty of the defendant to erect and maintain suitable guard rails on its bridges and to construct the approaches to its bridges so that the hazard to travelers will not be increased, and that such approaches should be kept clear of loose pebbles, sand, etc., to prevent the sliding and skidding of automobiles; that at the point where the said highway No. 39, leading from towards Georgetown towards Fort Gaines, crosses said railroad there is a deep cut, in which said railroad is situated, of approximately thirty feet, and a bridge commonly known as the wire bridge spans this cut and railroad above and across the railroad; that this bridge is approximately eighty-three feet long and eighteen and one-half feet wide and approximately thirty-three feet from the north end of said bridge to a point over the center of the railroad tracks; that said cut passes through a hill and is in the top or through the crest of the hill, the railroad running approximately east and west at said point; that the railroad is perfectly straight on the east side of the bridge for at least one-half mile, but bends and turns to the right after it passes under the bridge going westwardly, and the highway, crossing said bridge, before it reaches it coming from the north runs in a southeasterly direction but makes a sharp bend or curve just as it approaches said railroad and the railroad bridge; that highway No. 39, approaching said bridge from the north, is from twenty-eight to thirty feet wide, and at the abutment of the bridge is wider than thirty feet, and about three hundred feet before it reaches said railroad descends a steep hill or grade into a bottom, valley, or depression, and when within about a hundred feet of the bridge and railroad cut and railroad ascends a sharp hill or incline, and just before reaching the bridge turns shortly, sharply, and abruptly to the right at a sharp angle, so sharp that only the outeredge of the right side of the road meets the right side of the bridge, when, if it continued straight, it would have gone to the left side of the bridge and missed it entirely; that the bridge being only approximately eighteen and one-half feet wide, the left side of the road for a distance of fifteen feet or more misses the bridge entirely and without any railing, obstruction, or anything else to prevent a person traveling thereon from running into said cut; that the angle at which the road approaches the bridge and its abutment, and which is a part of the construction of the bridge and its abutment, is such that the natural consequences of a person traveling on the said highway, who is not well acquainted with the situation, in driving and operating his automobile would either miss the bridge entirely going to the left side thereof or strike the left side thereof in attempting to go over and onto the bridge or strike the same on its left side; that a person traveling southward on highway No. 39 from towards Georgetown towards Fort Gaines at night can not see the railroad bridge until he is within approximately twenty feet of it, and there was not, on September 26, 1937, any marks or signs on the highway or on said bridge or near the bridge to indicate the presence of the bridge on the highway or the presence of the railroad and railroad cut running across the highway or to expose the great risk and danger to a traveler in approaching said crossing and passing on same; that the highway, as it approached the bridge, widened out until there was approximately fifteen to twenty feet of the same on the left side entirely, unenclosed and without signs or warning that there was a deep cut open in said space of fifteen feet or more on the left side of the bridge, so that with a person coming up the hill in the night time the headlights of his car would be thrown upward and he could not see the cut or the bridge until within a few feet thereof and until it would be too late to save himself from the peril of falling therein and to his death; that a person approaching said railroad on the highway from the north could not, on September 26, 1937, see the bridge across the railroad at said point at night, or the cut through which the railroad runs, until within a few feet of either because (a) the highway or road, as it approaches said bridge, is so constructed by the defendant and maintained that it lies within a cut with banks on each side thereof, and especially on the right side thereof; (b) that said road, as it approaches said bridge and cut and railroad, runs uphill towards the same, keeping the headlights shining above the bridge and railroad and not on the bridge and railroad; (c)...
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