Mcmahen v. Nashville
| Decision Date | 21 November 1942 |
| Docket Number | No. 29591.,29591. |
| Citation | 23 S.E.2d 81 |
| Parties | McMAHEN . v. NASHVILLE, C. & ST. L. RY. CO. et al. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Under the law and the evidence, the trial court did not err in granting, on motion, a nonsuit as against both defendants and in dismissing the plaintiff's action.
Error from Superior Court, Floyd County; C. H. Porter, Judge.
Personal injury action by Lillie McMahen against Nashville, Chattanooga & St. Louis Railway Company and another. To review a judgment dismissing the action, plaintiff brings error.
Affirmed.
M. G. Hicks, Lamar Camp, and James Maddox, all of Rome, for plaintiff in error.
Wright & Willingham, and Lanham & Parker, all of Rome, for defendants in error.
Mrs. Lillie McMahen brought suit against the Nashville, Chattanooga & St. Louis Railway Company and the City of Rome to recover damages in the sum of $10,000, the petition alleging substantially as follows: The railway company owns and maintains a railroad track right of way in the City of Rome, running in a general northeasterly and southwesterly direction. Fourth Avenue in said city intersects the right of way and ends at East Fifth Street, which immediately joins the right of way of the railway company, and runs in a general easterly and westerly direction and the east end thereof is the right of way of the railway company. East Fifth Street in said city runs in a general northerly and southerly direction along the west line of the right of way and intersects Fourth Avenue. At the intersection, and on the right of way and extending partly into the intersection, is a large hole, approximately 15 to 20 feet long, 10 to 12 feet wide, and approximately 5 to 6 feet deep. At this place there had been erected a barrier or guard rail, consisting of two small wooden posts approximately three inches in diameter, put in the ground right on the edge of the hole, and two planks approximately one inch thick and six inches wide had been nailed to said posts and the posts were approximately 10 to 15 feet apart. The barrier had been there for such a period of time that the posts had rotted and were insecure, and one of the planks had become detached from the posts and was lying on the ground, and the barrier was not sufficiently strong to stop the impact of an automobile or other vehicle which mighthave been driven or skidded into the same or to impede its progress. On the day of the acts complained of, and immediately before, there had been raining, and there were water, mud, and debris accumulated at the intersection of East Fifth Street and Fourth Avenue. The said intersection is at the foot of a hill and is flat, and when it rains water, mud, and debris accumulate at said place, and had been doing so since the opening and construction of East Fifth Street and for such a period of time that the city knew, or in the exercise of ordinary care should have known, that the described condition existed at the intersection each time it rained. About 3.30 p. m. on December 27, 1940, the plaintiff was riding as a guest in an automobile operated by Mrs. J. F. Kelly and going in an easterly direction down Fourth Avenue and down the hill to the intersection and towards the right of way of the railway company, the automobile being operated at approximately twelve miles an hour. When the automobile reached the bottom of the hill at the end of Fourth Avenue and the intersection at East Fifth Street, the driver attempted to turn in a southerly direction on East Fifth Street, and in doing so her automobile skidded and slipped on said street in an easterly direction and into the hole hereinbefore described. The automobile was being operated only at a rate of speed approximately ten to twelve miles an hour, and the said water, mud, and debris on the street caused the automobile to skid and to slide into the hole. It struck the barrier and the barrier broke, permitting the automobile and the plaintiff to fall into the hole. The plaintiff had no control over the running or operation of the automobile but was a guest therein.
The petition alleged the age of the plaintiff, her earning capacity, the extent of her injury and the expenses incurred, all of which are not necessary to the determination of the issue presented to this court. It was alleged that the concurring acts of the city and the railway company, in permitting the hole to remain as alleged on and in the right of way and the street, created a nuisance, and that the hole, which was located on the side of the street and in the right of way, was and is a dangerous place and pitfall for persons driving automobiles at said place under the conditions alleged. The fence or guard rail erected at said place was old, rotten and insufficient in strength to prevent the automobile from slipping off the street and into the hole, and the posts of the same would not and could not bear any considerable force or strength, and the hole had existed at this place for a long period of years and was known to the city, or by the exercise of ordinary care it should have known of the same. It was the duty of the city to erect a suitable barrier at said place to prevent automobiles or other vehicles from running, slipping, or sliding into the hole, and it was its further duty to keep and maintain a street in a reasonably safe condition for persons using the same, and not to permit such a hole to remain in the street and immediately adjacent thereto without a suitable barrier to prevent persons using the same in the usual and ordinary manner from falling into the same. It was the duty of the railway company to keep its right of way immediately contiguous and adjacent to Fourth Avenue and East Fifth Street in a reasonably safe condition, and not permit and maintain such a hole and pitfall described in said street and right of way. Allowing the hole to remain in the street and in the right of way of the railway company at said place constituted and was a nuisance, and constituted and was negligence on the part of both of the defendants. The petition also alleged service of notice on the city as required by law.
Each of the defendants filed a demurrer, general and special, to the petition. The demurrers were overruled. The City of Rome filed no exceptions pendente lite. The railway company filed such exceptions, but filed no cross-bill of exceptions.
Each of the defendants, in answer to the petition, admitted the locations of the streets and the location of the right of way of the railway company, denied the existence of the hole and its size and location, admitted that a barrier or guard rail had been erected at the place described in the petition but denied the other allegations in respect thereto, denied the existence of water, mud, and debris at the intersection of East Fifth Street and Fourth Avenue. The city denied that the intersection is at the foot of a hill. The railway company admitted the truth of such allegation. Each alleged that for want of sufficient information it could neither admit nor deny that the plaintiff was a guest in the automobile in question, denied that the automobile skidded into the hole and denied the speed ofthe automobile as alleged. All allegations of negligence were denied, and both defendants denied that the hole constituted a nuisance and pitfall and that it was their duty to erect a suitable barrier at the place in question to prevent automobiles or other vehicles from running, slipping, or sliding into the hole. The answer of the railway company alleged that the plaintiff's injury was occasioned solely by the negligence of the driver of the automobile in approaching the intersection at an excessive rate of speed, in violation of an ordinance of the City of Rome, which prohibited the driving of any vehicle at a greater rate of speed than ten miles per hour at any street intersection within the city, and in operating and driving an automobile with defective brakes, and in failing to use and apply the emergency brakes of the automobile.
At the conclusion of the plaintiff's evidence upon the trial of the case the court, on motion, granted a nonsuit as to both defendants and dismissed the plaintiff's case. The exception here is to that judgment.
The duty of a municipality with respect to the maintenance of its streets and sidewalks in a safe condition for use by the public is as follows: City of Rome v. Brinkley, 54 Ga. App. 391, 392, 187 S.E. 911, 912. See, also, Mayor & Council of Buford v. Medley, 58 Ga.App. 48, 197 S.E. 494; City of Barnes ville v. Sappington, 58 Ga.App. 27, 28, 197 S.E. 342.
The duty of a railroad or other landowner not to maintain a dangerous excavation on its premises which are situated in close proximity to a public thoroughfare is as follows: " ...
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