Smith v. Colquitt County, (No. 17632.)

• Decision Date: 24 September 1927
• Docket Number: (No. 17632.)
• Citation: 139 S.E. 682,37 Ga.App. 222
• Parties: SMITH. v. COLQUITT COUNTY et al.
• Court: Georgia Court of Appeals

37 Ga.App. 222

139 S.E. 682

SMITH.

v.COLQUITT COUNTY et al.

(No. 17632.)

Court of Appeals of Georgia,

Division No. 2.

Sept. 24, 1927.

(Syllabus by the Court.)

Error from Superior Court, Colquitt County; W. E. Thomas, Judge.

Suit by Mrs. Ida Smith against the County of Colquitt and others. Petition was dismissed, and plaintiff brings error. Affirmed.

This is a suit brought in Colquitt superior court by Mrs. Ida Smith against the county of Colquitt and J. W. Howze and J. A. Shupe, residents of the county of Tift, to recover damages for the homicide of her husband, which she alleges resulted from the joint and concurrent negligence of the defendants. She alleges that her husband was traveling toward Norman Park in an automobile along a public road in the county of Colquitt, and that after he had come upon a bridge in the road, and before completely passing over the bridge, his car was run into and wrecked by an approaching car occupied by the defendants Howze and Shupe, and as a result of this collision the plaintiff's husband was killed; that the bridge was over a water course, and had been erected in 1921, and was maintained by the defendant county; that the bridge was 32 feet in length along the roadbed and was 11 feet and 5 inches wide between barriers built along both sides of the bridge; that leading off from the bridge in the direction in which the plaintiff's husband was traveling the roadway gradually widened from a width of 20 feet at the bridge to a width of 30 feet at a distance of about 600 feet from the bridge; that this widening in the roadway was so gradual as to be imperceptible to an ordinary traveler along the highway; that the bridge was constructed of pine timber and "had weathered to an indistinct gray that blended with the surrounding scenery and faded into the landscape, giving the appearance of a continuous highway of unvarying width of 30 feet, " and that one approaching the bridge "could not anticipate the presence of a bridge more narrow than the road until one came very near, if not upon, said bridge"; that the approaching car of the defendants Howze and Shupe was traveling at a negligent rate of speed of approximately 60 miles an hour, and, in violation of law approached the bridge at a rate of speed in excess of 10 miles an hour, and was not under immediate control.

The plaintiff alleges that the law requires bridges on highways to be 16 feet in width and that the maintenance by the county of the bridge at a width of only 11 feet and 5 inches was negligence as a matter of law. It is also alleged that the bridge, being only 11 feet and 5 inches in width, was too narrow to permit the passing of two vehicles thereon at the same time, and that, since the highway was a frequently traveled highway of the county and vehicles might reasonably be expected to meet at the bridge, the county was negligent as a matter of fact in maintaining a bridge of this width. It is alleged that the county maintained no signs warning travelers of the narrowness of the bridge. The plaintiff alleges the value of her husband's life and her damage as a result of his homicide. It is alleged that the defendant Howze, who was riding in the approaching car, was the owner thereof and was directing and controlling the operation of the car, and that the defendant Shupe was driving the car as his employee.

General and special demurrers were interposed by all the defendants. Howze and Shupe demurred specially upon the ground that no cause of action was set out against the county, and that, as they were nonresidents of the county, the court had no jurisdiction over them. The demurrers were sustained and the petition dismissed as to all the defendants, and the plaintiff excepted.

Waldo De Loache, of Moultrie, for plaintiff in error.

STEPHENS, J. (after stating the facts as above). [1] 1. If no cause of action is set out against the county of Colquitt, the court has no jurisdiction over Howze and Shupe, as they are nonresidents of that county. The only allegations of negligence on the part of the county of Colquitt are as to the narrowness of the bridge and the failure of the county to put out warning signs to travelers along the highway, calling attention to the narrow condition of the bridge. Counsel for the plaintiff, in support of their allegation that a legal duty rests upon the county to maintain its...