McDaniel v. Southern Ry. Co., s. 48328

• Decision Date: 08 November 1973
• Docket Number: Nos. 48328,48329,No. 3,s. 48328,3
• Parties: Sarah T. McDANIEL v. SOUTHERN RAILWAY COMPANY et al. SOUTHERN RAILWAY COMPANY et al. v. Sarah T. McDANIEL
• Court: Georgia Court of Appeals

Page 260

203 S.E.2d 260

130 Ga.App. 324

Sarah T. McDANIEL v. SOUTHERN RAILWAY COMPANY et al.

SOUTHERN RAILWAY COMPANY et al. v. Sarah T. McDANIEL.

Nos. 48328, 48329.

Court of Appeals of Georgia, Division No. 3.

Nov. 8, 1973.

Rehearing Denied Nov. 28, 1973.

J. M. Grubbs, Jr., Adele W. Platt, Marietta, for appellant.

Greene, Buckley, DeRieux & Jones, Burt DeRieux, Alfred B. Adams, III, Arthur K. Bolton, Atty. Gen., Marion O. Gordon, G. Thomas Davis, Asst. Attys. Gen., G. Conley Ingram, Deputy Asst. Atty. Gen., Atlanta, for appellees.

Syllabus Opinion by the Court

PANNELL, Judge.

1. 'While a county is not liable to suit unless made so by statute, it has been provided by a statute of this State, that a county is primarily liable for all injuries caused by reason of any defective bridges, whether errected by contractors or county authorities; . . ..' Berrien County v. Vickers, 73 Ga.App. 863(1), 38 S.E.2d 619; Stone v. McMeekin Construction Co., 110 Ga.App. 546(8), 139 S.E.2d 421; Code § 95-1001.

2. Under Code § 95-1001, a bridge includes the structure of the bridge itself, its approaches (here 100 feet from the end of the bridge structure, as the bridge was 700 to 1,000 feet long) abutments and appurtenances necessary to its proper use (Berrien County v. Vickers, 73 Ga.App. 863(1), 38 S.E.2d 619, supra; Mitchell County v. Dixon, 20 Ga.App. 21(3), 92 S.E. 405; Hagan Grocery Co. v. Nobles, 26 Ga.App. 394(2), 106 S.E. 807), and the diligence required by the county is applicable to all portions of the bridge as so defined. Morgan County v. Glass, 139 Ga. 415(4), 77 S.E. 583. The guardrails here, although not actually attached to the bridge, are nothing more than an extension of the bridge rails and designed to prevent or mitigate the causes of collision with the bridge structure itself, as well as to prevent running off the approach embankment. It follows, therefore, that the duty to exercise ordinary care to build and maintain the bridge in a safe condition applies to the guardrails in the present case.

3. However, the duty to do so applies only to those using the approaches and the bridge structure for ordinary travel. Grady County v. Banker, 81 Ga.App. 701(6), 59 S.E.2d 732; Collier v. Cobb County, 81 Ga.App. 712, 59 S.E.2d 672; Meriwether County v. Gilbert, 42 Ga.App. 500, 156 S.E. 472. Ordinary travel, however, is not synonymous with ordinary care.

4. Where a metal guardrail on posts is placed on the approach to a bridge on an expressway, or Interstate Highway, which guardrail was designed, built and installed by the State Highway Department (now, Department of Transportation), and at the time of its design was a standard design and approved by Federal Road Authorities and which curved away from the concrete pavement as it extended from the end of the bridge rail for a distance of 80 feet and terminated above ground four feet from the edge of the concrete pavement, with the metal rail bent slightly outward, and known as a beam and guardrail and which did not disappear into the ground as a newer design known as a flared and anchored guardrail, which became a standard design after the bridge and guardrail were designed, but before the contract was let and they were built, the county is not liable to a passenger in an automobile who was injured and killed when the automobile driven by a fellow employee on a straight section of road approaching the bridge ran off the left edge of the pavement when the driver fell asleep and remained entirely or partly off the left edge of the pavement for a distance of 132 feet before hitting the end of the guardrail, which pierced the automobile on the passenger's side striking the passenger, and the automobile, after ripping up half of the guardrail and posts, went down the embankment reversing its direction of travel. The county in which the bridge was built and maintained was not liable for the death of the passenger under Code § 95-1001 for the reason the sole proximate cause of the collision, which resulted in the injuries to the passenger, was the act of the driver of the automobile. See Hancock County v. Clark, 46 Ga.App. 363, 167 S.E. 748 where an automobile hit a soft spot in the road, not a part of the approach to the bridge, causing the driver to lose control and hit an abutment to the bridge and causing injuries to a passenger. See also Corley v. Cobb County, 21 Ga.App. 219, 93 S.E. 1015; Smith v. Colquitt County, 37 Ga.App. 222(2), 139 S.E. 682; Eberhart v. Seaboard Air Line Rwy. Co., 34 Ga.App. 49, 55, 129 S.E. 2; Scott v. Edwards, 50 Ga.App. 373, 178 S.E. 175; and Knight v. Floyd County, 38 Ga.App. 515, 144 S.E. 348 in which it was held: 'The mere fact that a bridge, at its entrance on a highway, is narrower than the road, and that by reason of this discrepancy in width a vehicular traveler approaching the bridge and adhering to the outer edge of the road will fail to take the bridge and will fall from the road into a declivity on the side of the road at the entrance to the bridge, constitutes no defect in the bridge itself or in the abutments to the bridge, or in the manner in which the bridge is connected with the highway.' It is not a duty of the county to anticipate and provide against a driver of an automobile falling asleep, but this falls within the 'domain of the unusual and extraordinary, and therefore, in contemplation of law, of the unforeseeable,' there being no defect in the bridge which was a contributory cause toward rendering the automobile uncontrollable. Georgia Power Co. v. Murray, 57 Ga.App. 141, 148, 194 S.E. 403, 406.

5. The trial court did not err in granting the county's motion for summary judgment as against the plaintiff.

Judgment affirmed.

EBERHARDT, P.J., and STOLZ, J., concur.

These cases are before this court on appeal from the sustaining of a motion for summary judgment by the defendant, Bibb County, Georgia. An action was commenced in the Superior Court of Cobb County, wherein, as amended, plaintiff seeks to recover damages for the full value of her husband's life and his funeral expenses against Bibb County, John M. Overton and Southern Railway Company. This action is brought on the grounds of negligence on the part of all the defendants, and against Southern Railway Company under the Federal Employers' Liability Act. Bibb County answered and filed a motion to dismiss the complaint on various grounds, two of which were related to venue. These two grounds were ruled upon by the trial judge and denied. On appeal, this ruling was affirmed. Bibb County v. McDaniel, 127 Ga.App. 129, 192 S.E.2d 544. Cross appeals against each other were filed by Bibb County and Southern Railway Company. Bibb County then filed its motion for summary judgment as against the plaintiff, which was sustained. Plaintiff and Southern Railway Company entered separate appeals.

The alleged negligence against Bibb County was that it installed and maintained a guardrail on an approach to a bridge over a creek on Interstate Highway #475, which was negligently designed and negligently maintained, in that the end of it paralleling the highway 'stuck up and protruded up' not being anchored in the ground and in such a manner as to present the end extremity of said guardrail as a hazardous and dangerous penetrating object should it be struck by any moving vehicle; and that the proximate cause of decedent's death was the penetration by this guardrail of the vehicle in which decedent was riding as a passenger, causing or contributing to the cause of his death.

The evidence produced on the motion for summary judgment showed substantially the following facts or, contrued most strongly against movant, authorized a finding to that...