Mccombs v. Southern Ry. Co, (No. 19274.)

• Decision Date: 18 May 1929
• Docket Number: (No. 19274.)
• Citation: 39 Ga.App. 716,148 S.E. 407
• Parties: McCOMBS. v. SOUTHERN RY. CO. et al.
• Court: Georgia Court of Appeals

39 Ga.App. 716

148 S.E. 407

McCOMBS.

v.SOUTHERN RY. CO. et al.

(No. 19274.)

Court of Appeals of Georgia, Division No. 2.

May 18, 1929.

(Syllabus by the Court.)

Error from Superior Court, Floyd County; James Maddox Judge.

Department 2.

Action by Milton McCombs, a minor, by next friend, against the Southern Railway Company and another.Judgment for defendants, and plaintiff brings error.Reversed.

Porter & Mebane, of Rome, for plaintiff in error.

Maddox, Matthews & Owens, and J. L. Wallace, all of Rome, for defendants in error.

BELL, J. Milton McCombs, a minor 9 years of age, by another as next friend, brought a suit for damages against Southern Railway Company and one Eugene Grace, alleging that, in crossing a bridge erected by the defendant railway company over its railroad in the city of Rome and forming a part of a public street known as Calhoun avenue, he(the plaintiff) was enveloped in a cloud of smoke, dust, and cinders negligently emitted from a locomotive of the defendant, which was passing under the bridge, and that at the same time the other defendant, who was crossing the bridge in an automobile, negligently ran over and injured the plaintiff, and that the negligence of each of the defendants contributed to and caused his injury.

The court sustained certain special grounds of the railway company's demurrer, and the plaintiff excepted.The exceptions then brought were considered by this court in the decision reported in 38 Ga. App. 429, 144 S. E. 137, where it was held that the trial court did not err in requiring the plaintiff to supply the information demanded by the demurrer.Direction was given, however, that the plaintiff be permitted to amend his petition accordingly at the time the judgment of this court was made the judgment of the court below.

The demurrer called for allegations as to whether or not a separate walkway for pedestrians was maintained on the bridge.When the case was again considered in the court below, the plaintiff offered an amendment wherein he averred that at the time of his injury he was crossing upon the upper or northern side of the bridge, and that this portion of the bridge had been used by pedestrians generally as he was then using it, ever since the bridge had been erected by the railway company; that, while there was no walkway on that side of the bridge, it was situated in a thickly and densely populated portion of the city of Rome; and that pedestrians in large numbers when crossing the bridge would walk upon the upper or northern portion thereof, as the plaintiff was doing at the time of his injury.The amendment further alleged that there was a walkway on the southern side of the bridge, but that this was used mainly by pedestrians who used the south side of Calhoun avenue, and that pedestrians who used the north side of this avenue crossed the bridge by passing along the upper er northern portion thereof; that this had been the custom and practice of the public generally for a period of 15 years; and that the defendant knew of such use of the bridge, and had never made any objection thereto, but had acquiesced therein "for said length of time."

On the allowance of this amendment, the demurrer of the railway company as originally filed, including general grounds, was renewed, and, upon consideration thereof, the court sustained the demurrer and dismissed the petition; whereupon the plaintiff again excepted.Under the instant writ of error we have not only the question of whether the petition set forth a cause of action against the railway company, but also of whether the petition was subject to certain additional special grounds of demurrer, the validity of which were not adjudicated upon the former hearing.

In the original petition it was averred that the bridge was about fifteen feet in width and approximately sixty feet in length, constructed of wood, with banisters on each side four feet high; and that, as the plaintiff was immediately above the roadbed and track of the railway company, a locomotive engine approached the bridge, and that, "just as the smoke or exhaust stack of said locomotive engine approached the northern part of said bridge, said engine gave a quick, sudden, powerful, and unusual and unnecessary exhaust from said smoke or exhaust stack, and emitted and threw forth, out and over the top of said bridge, a great volume of smoke, dust, and cinders, completely enveloping the top and floor all around your petitioner with a great volume of smoke, dust, and cinders, said exhaust of said smoke, dust, and cinders from said engine temporarily blinding your petitioner and knocking him back to about the center of said bridge, completely covering up and obscuring [him?] from the vision ofany one in said street; and while your petitioner was enveloped in said cloud of smoke on said bridge the other defendant herein, Eugene Grace, driving an automobile up and on said bridge from towards the east and going towards the west, ran into your petitioner while he was so enveloped in said cloud of smoke, dust, and cinders, and knocked your petitioner down with the automobile which he was driving, ran over him, and seriously injured him, as hereinafter set-forth."

The allegations of negligence with respect to the railway company were as follows:

Paragraph 16 of the petition: "Petitioner charges and alleges that the engineer, whose name to petitioner is unknown, who had said engine and locomotive of the defendant railroad company in charge, approached said bridge from the north and going in a southerly direction, and as your petitioner and his companion were on said bridge they were in plain view of the engineer of said locomotive and his said fireman, whose name is to your petitioner unknown, and that said engineer and fireman saw, or by the exercise of ordinary care could have seen, your petitioner and his said companion as they walked over, on, and along said bridge in said public street and highway as aforesaid, and that said engineer and fireman knew or should have known that said heavy, unnecessary, and unusual exhaust from said engine, which completely covered your petitioner with smoke, making it impossible for your petitioner to be seen as he walked in, along, and over said bridge, and that automobiles were passing over said bridge constantly, and that under said condition, said engineer and fireman knew or should have known that your petitioner was liable and likely to be run into and over by some automobile driver along, over, and across said bridge as aforesaid.Tour petitioner therefore shows that it was negligence in the defendant's agents in so using and manipulating said engine that it would and did envelop your petitioner in said great cloud of smoke as aforesaid, and that it was negligence in the defendant railroad company in its said engineer and fireman, in not so running said locomotive engine under said bridge that it would not envelop your petitioner in smoke, dust, and cinders and hide and obscure him from the vision and sight of people driving automobiles in, on and across said bridge."

(17)"Your petitioner shows that as a member of the general public and having the right to the use of said bridge, and said defendant's agent, as aforesaid, knowing, or by the exercise of ordinary care and diligence could have known that your petitioner was walking along said bridge, that it was the duty of the defendant railroad company to use care and caution and not recklessly, negligently, and carelessly cause said engine to empty its exhaust-and pour forth said volume of smoke and cinders in the face of your petitioner blinding him and enveloping him in said volume of smoke, when as a member of the general public he had the right to the use of said street, and in walking across said bridge; that if said engineer had not caused said engine to emit said great volume of smoke, cinders, and dust, and completely envelop him with said cloud of smoke, and hiding him from the presence of others on the street, your petitioner would not have been injured and said automobile so driven by the said Eugene Grace would not have run into and against your petitioner.That the proximate cause, or one of the proximate causes, of the injury of your petitioner was the negligence of said railroad company as aforesaid."

As to the other defendant, Eugene Grace, the petition alleged:

Paragraph 13, "Petitioner charges the defendantEugene Grace was negligent in driving his said automobile into and through said volume of smoke, when your petitioner was enveloped as aforesaid, without stopping his said automobile until said smoke had cleared away; that the defendantEugene Grace knew that your petitioner was on said bridge before he drove upon said bridge and before petitioner was enveloped in said cloud of smoke, and that it was negligence in the defendantEugene Grace in running his said automobile into said cloud of smoke and striking and injuring your petitioner as aforesaid."

(14)"That it was negligence per se in the defendant...