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

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: PANNELL; EBERHARDT, P.J., and STOLZ
• Citation: 130 Ga.App. 324,203 S.E.2d 260
• Parties: Sarah T. McDANIEL v. SOUTHERN RAILWAY COMPANY et al. SOUTHERN RAILWAY COMPANY et al. v. Sarah T. McDANIEL
• Decision Date: 08 November 1973
• Docket Number: Nos. 48328,48329,No. 3

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.

Page 261

[130 Ga.App. 326] 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, [130 Ga.App. 327] G. Thomas Davis, Asst. Attys. Gen., G. Conley Ingram, Deputy Asst. Atty. Gen., Atlanta, for appellees.

Syllabus Opinion by the Court

[130 Ga.App. 324] 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. [130 Ga.App. 325] 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 [130 Ga.App. 326] 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

Page 262

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...