Southern Ry. Co v. Pope

• Decision Date: 03 February 1908
• Citation: 129 Ga. 842,60 S.E. 157
• Court: Georgia Supreme Court
• Parties: SOUTHERN RY. CO. v. POPE.

60 S.E. 157

129 Ga. 842

SOUTHERN RY. CO.

v.POPE.

Supreme Court of Georgia.

Feb. 3, 1908.

1. Railroads — Killing Stock—Pleading— 'Negligence.

In an action based upon the negligence of the defendant, which it is alleged resulted in the killing of a mule, it is not sufficient to allege the negligence in general terms, and it was error for the court to overrule a special demurrer calling for the particulars of the alleged negligence. Russell v. Central of Ga. Ry. Co., 119 Ga. 705, 46 S. E. 858; Macon, Dublin & Sav. R. R. Co. v. Stewart, 120 Ga. 890, 48 S. E. 354.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 41, Railroads, § 1551.]

2. Same.

Although the mule alleged to have been killed was, when struck by the defendant's train, at a point between the blow post and a public crossing, and not upon the crossing, and the failure to check the speed of the train and give the proper signals was not the proximate cause of the injury, still it was competent for the plaintiff to prove as a part of the res gestæ the fact that the engineer did not check the speed of the train, nor blow the whistle of the locomotive; and, evidence for this purpose being admissible, the allegations of this fact should have been allowed to remain in plaintiff's petition, and the demurrer thereto was properly overruled. Atlanta & Charlotte Air Line Ry. Co. v. Gravitt, 93 Ga. 369, 20 S. E. 550, 26 L. R. A. 553, 44 Am. St. Rep. 145.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 1551-1556.]

3. Appeal—Review.

The questions raised in the motion for a new Trial are not dealt with, inasmuch as all the proceedings in the trial court subsequently to the overruling of the defendant's demurrer, as indicated in the first headnote, are to be treated as nugatory.

(Syllabus by the Court.)

Error from Superior Court, Butts County; E. J. Reagan, Judge.

Action by A. H. Pope against the Southern Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

N. E. & W. A. Harris, for plaintiff in error.

Frank Z. Curry, R. R. Arnold, and Jas. B. Ridley, for defendant in error.

BECK, J. Judgment reversed. All the Justices concur, except HOLDEN, J., not presiding, and ATKINSON, J., concurring specially.

ATKINSON, J. (specially concurring as to the first headnote). The case of Macon, Dublin & Savannah R. Co. v. Stewart, 120 Ga. 890, 48 S. E. 354, was decided by six justices, and is controlling. The material allegations under consideration in that case were sub-stantially the same as those made in the petition in the present case. The first headnote in that case is as follows: "A petition to recover damages for the killing of two mules by a railroad company, which in general terms alleged that the animals were killed by a train of defendant 'in a careless and negligent manner running over said mules in the field of petitioner * * * and on the tracks of said railroad company, ' should, in the absence of amendment, have been dismissed upon special demurrer, on the ground that it did not set out any specific acts of negligence. Seaboard Air Line Ry. Co. v. Pierce, 120 Ga. 230, 47 S. E. 581. See, also, Central Ry. Co. v. Weathers, 120 Ga. 475, 47 S. E. 956." The cases cited in the headnote just quoted were each decided by five justices, and are not controlling. I do not think the doctrine recognized in the headnote in the Stewart Case is sound; but, being controlled by the rulings there made, I am obliged to concur in the ruling by the majority...