Seabd. Air Line Ry. Co v. Young, (No. 19189.)

• Decision Date: 10 April 1929
• Docket Number: (No. 19189.)
• Citation: 148 S.E. 757,40 Ga.App. 4
• Parties: SEABOARD AIR LINE RY. CO. v. YOUNG.
• Court: Georgia Court of Appeals

40 Ga.App. 4

148 S.E. 757

SEABOARD AIR LINE RY. CO.

v.YOUNG.

(No. 19189.)

Court of Appeals of Georgia,

Division No. 2.

April 10, 1929.

Rehearing Denied June 17, 1929.

(Syllabus by Editorial Staff.)

[COPYRIGHT MATERIAL OMITTED]

Error from Superior Court, Gwinnett County; W. W. Stark, Judge.

Action by K. B. Young against the Seaboard Air Line Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

John B. Gamble, of Athens, and N. L. Hutchins, of Lawrenceville, for plaintiff in error.

John I. Kelley, and O. A. Nix, both of Lawrenceville, for defendant in error.

Syllabus Opinion by the Court.

JENKINS, P. J. [1-3] 1. The petition was not subject to general demurrer in that it set forth no cause of action, or because it affirmatively showed that the driver of the automobile in which the decedent was killed was guilty of negligence proximately causing the homicide, where it was alleged that the decedent, while traveling in an automobile along a public road which made a sharp curve at and upon a bridge over the railroad track of the defendant, approached the bridge with all proper care and diligence, at a speed not exceeding eight miles per hour, and in "easing" upon the bridge, and in making the very sharp turn thereat, touched the guard rail thereof with a very slight force, but that, on account of the weak, rotten, and negligently maintained condition of the guard rail it allowed the car to go over the bridge and to fall on the track below. This is true for the reason that "it is incumbent upon a railroad company to exercise due care in the maintenance of a bridge over its tracks along a public highway in a condition safe for travelers passing over the bridge in the exercise of due care." In determining whether a railway company has exercised such due care, and whether it has complied with its duty in erecting and maintaining a "suitable" bridge, consideration should be given to the physical surroundings and the particular condition of the roadway approaching the bridge. Civ. Code 1910, § 2673; Hardin v. Southern R. Co., 36 Ga. App. 427 (1, 2), 136 S. E. 802. While it cannot be said that the proper function of a guard rail is to withstand the impact of an automobile negligently handled, if the physical surroundings are such that it could reasonably be supposed that an automobile in making such a difficult entrance upon the bridge, and while being driven in accordance with law and with all due care and prudence, would come in contact with the guard rail, the jury would be authorized to say that such physical surroundings and conditions should be taken into consideration in determiningthe nature, character, and strength of the guard rail required to be provided, and the allegation that the guard rail in existence at the time of the alleged accident was weak, rotten, and insecure, was such an averment as might be held to charge negligence on the part of the defendant.

2. Such a petition was amendable by setting forth that the bridge in question was constructed so that the floor of the bridge was higher than the roadway, and by alleging that the defendant had negligently permitted loose sand and dirt to accumulate on the abutment of the bridge and the "woodwork thereof, " and that the automobile in going upon the bridge struck the raised portion thereof and the accumulated sand and dirt, which caused it to turn and strike the guard rail. The petition was also amendable by setting forth the name of the driver of the automobile, and by more particularly describing the construction of the bridge, and the nature and character of the roadway and the surrounding territory.

3. In such a suit, brought by a mother for the alleged wrongful death of her minor daughter, it could not be said that it was prejudicial error to permit the plaintiff to testify as to the number of persons composing the family, or that the statement of the court in ruling upon such testimony, to the effect that the plaintiff's right to sue was not affected by the fact that there were other members of the family, but that the plaintiff had "a right to sue for her any way, " was harmful to the defendant or calculated to prejudice the jury against the defendant.

4. "Where the question under examination, and to be decided by the jury, is one of opinion, any witness may swear to his opinion, giving his reasons therefor." Civ. Code 1910, § 5874. Accordingly, where one of the issues presented to the jury was as to the qualification and experience as an automobile driver of the person driving the car at the time of the decedent's death, It was not error to permit a person who was a passenger in the automobile, and who had observed the actions of the driver over a long trip, to testify as to the manner of her driving with respect to her care and competency.

(a) Nor was it error to allow such a witness, who on the occasion in question sat in the car next to the driver, to state that he did nothing to cause the car to hit the banister rail.

(b) The testimony of such witness to the effect that he did not notice any loose sand or dirt on the bridge could not have been harmful to the defendant.

(c) Nor was it ground for reversal that such witness was allowed to testify that the bridge in question was not as wide as the road, and to give his opinion, based thereon, that it was "a little narrow, " especially as there was testimony from other witnesses showing, without dispute, the exact width of both the roadway and the bridge itself.

(d) The court did not err in permitting a witness who testified that he had ridden in automobiles for many years, but had never driven one, and had observed and knew the effect of soft sand and dirt on an automobile wheel, to testify that in his opinion striking loose sand and dirt on a bridge would have a tendency to change the course of an automobile. It was not improper for the court to state, in ruling upon the admissibility of such testimony, that its probative value was a question for the jury.

(e) The testimony of the father of the deceased as to the condition of a piece of timber picked up by him under the bridge a short time after the accident, and forming a part of the guard rail, was properly admitted, in view of the testimony that the witness had made a search for the timber and was unable to find it.

(f) Likewise, the testimony of the father of the deceased to the effect that in his opinion he could have pushed the guard rail off of the bridge was admissible, in view of the previous testimony of the witness as to the condition of the rail, and the manner in which it was braced and fastened to the bridge.

(g) It was not error to permit the driver of the automobile in question, who was offered as a witness for the defendants, to testify, on cross-examination, after describing the manner and rate of speed at which the car was proceeding, and the condition of the roadway and the bridge, that the automobile struck the guard rail with very slight force, and the guard rail gave way and the car slowly toppled over, that in her opinion the guard rail was not strong.

5. While it has been held that the fact that after an occurrence resulting in injury to one person, another who is sought to be held accountable therefor took additional precautions to prevent others from being likewise injured, cannot be regarded as an admission of negligence,...