Poole v. Southern Ry. Co

• Decision Date: 02 September 1925
• Docket Number: (No. 16109.)
• Citation: 129 S.E. 297,34 Ga.App. 290
• Court: Georgia Court of Appeals
• Parties: POOLE . v. SOUTHERN RY. CO. et al.

34 Ga.App. 290

129 S.E. 297

POOLE .

v.SOUTHERN RY. CO. et al.

(No. 16109.)

Court of Appeals of Georgia,

Division No. 2.

Sept. 2, 1925.

(Syllabus by Editorial Staff.)

Error from Superior Court, Stephens County; J. B. Jones, Judge.

Action by R. B. Poole, by next friend, against the Southern Railway Company and others. Judgment for defendants, and plaintiff brings error. Affirmed.

H. H. Chandler, of Winder, Winston Owen, of Toccoa, Geo. L. Goode, of Carnesville, and George & John L. Westmoreland, of Atlanta, for plaintiff in error.

Charters & Wheeler, of Gainesville, J. K. Jordan, of Atlanta, and Bond & McClure and Fermor Barrett, all of Toccoa, for defendants in error.

Syllabus Opinion by the Court.

STEPHENS, J. [1, 2] 1. Where, in a suit against two defendants alleged to be joint tort-feasors, a special demurrer to the petition, upon the grounds of misjoinder of parties and of causes of action, filed by one of the defendants, is sustained "with leave to plaintiff to proceed against either defendant, " and the plaintiff thereafter elects to proceed against the other defendant alone, and, after having so elected, the case proceeds to trial, and results in a nonsuit, the plaintiff will, by go electing and proceeding to trial, be held to have abandoned the suit as against the first named defendant. An assignment of error in the bill of exceptions by the plaintiff to the order of the judge sustaining the demurrer against the first named defendant presents no question for determination. Adams v. Georgia Ry. & Electric Co., 142 Ga. 497, 83 S. E. 131; Rome R. Co. v. Thompson, 101 Ga. 26, 32 (11), 28 S. E. 429; Morris v. Wofford, 114 Ga. 935, 41 S. E. 56; McMillan v. Rodgers, 32 Ga. App. 647, 124 S. E. 354.

2. The mere passage of a municipal ordinance laying out and establishing a street over the land and tracts of a railroad company is, in the absence of an actual laying out and establishing of such street or of a legally acquired right so to do, insufficient to establish a street over the land and tracks of the railroad company Brunswick & W. R. Co. v. Waycross, 94 Ga. 102, 21 S. E. 145; Collins v. Mayor, 77 Ga. 745; Georgia R. & Banking Co. v. Union Point, 119 Ga. 809, 816, 47 S. E. 183; Robins v. McGehee, 127 Ga. 431, 435, 56 S. E. 461; Atlanta & West Point R. Co. v. Atlanta, 156 Ga. 251, 119 S. E. 712.

3. The owner of land traversed by a public highway is under no duty to a traveler along the highway to maintain in a safe condition for travel the abutting premises at a point such a distance from the highway that it cannot be reached by the ordinary deviations from the highway incident to careful traveling thereon, but can only be reached by a traveler who has, negligently and in a manner oblivious of his own safety, completely abandoned the highway and gone over onto the abutting premises. Hutson v King, 95 Ga. 271, 22 S. E. 615; Collier v. Georgia R. R. 76 Ga. 611; Zettler v. Atlanta, 66 Ga. 195; Western & Atlantic R. Co. v Rogers, 104 Ga. 224 (3), 30 S. E. 804; King v. Central of Ga. Ry. Co., 107 Ga. 754, 33 S. E. 839.

4. Where such highway is a street maintained by a municipality, such abutting landowner owes no duty to a traveler by reason of the street being upon his own premises,...