Southern Ry. Co v. Mccrary

• Decision Date: 04 March 1937
• Docket Number: No. 25952.,25952.
• Citation: 55 Ga.App. 406,190 S.E. 195
• Parties: SOUTHERN RY. CO. v. McCRARY
• Court: Georgia Court of Appeals

55 Ga.App. 406

190 S.E. 195

SOUTHERN RY. CO.

v.McCRARY

No. 25952.

Court of Appeals of Georgia, Division No. 2.

March 4, 1937.

.

Syllabus by the Court.

1. The violation of a city ordinance by a railroad company is ordinary negligence. Atlantic Coast Line Ry. Co. v. Adams, 7 Ga.App. 146, 06 S.E. 494.

2. An action for wanton negligence cannot be joined with one for simple negligence, in the same count, over the objection of appropriate demurrer. Buffington v. Atlanta, B. & C. Ry. Co., 47 Ga.App. 85, 86, 169 S.E. 756. The court erred in not dismissing the count containing both a charge of wanton negligence for failing to stop a train without killing deceased after having seen him on the tracks 400 yards away in a helpless condition, and a charge of simple negligence in violating a speed ordinance of the city of Rome.

3. Before the personal representative of a deceased person can recover in a suit brought for his homicide on behalf of the next of kin, it must be alleged and proved that the deceased contributed to the support of the person for whom the suit is brought and that such person was dependent on the deceased. Both dependency and contribution are prerequisite for recovery. Ga.Laws 1924, p. 60, Code, § 105-1309; Clay v. Central Railroad & Banking Co. of Georgia, 84 Ga. 345, 10 S.E. 967; Kent v. Consumers' Co., 47 Ga.App. 213, 170 S.E. 202.

4. The other assignments of error are without merit.

Error from Superior Court, Floyd County; C. H. Porter, Judge.

Suit by Hugh McCrary, as administrator of the estate of Albert Hymon, against the Southern Railway Company. Judgment for plaintiff, defendant's motion for a new trial was overruled, and defendant brings error.

Reversed.

Hugh McCrary, as administrator of the estate of Albert Hymon, brought suit against the Southern Railway Company for damages on account of the homicide of the deceased, alleged to have been caused by the wanton negligence of an engineer on the defendant's train. The suit was brought under Code, § 105-1309, for the benefit of Estelle Bennet, a first cousin of the deceased, alleging that the deceased contributed to her support the sum of $20 per month and that she was dependent on the deceased to that extent. The suit was brought in two counts, both charging wanton negligence. The counts were identical except that the first count also included allegations with reference to violation of a speed ordinance of the city of Rome. The railroad filed demurrers tothe declaration, those necessary to be mentioned being: That two counts charging wanton negligence were contrary to good pleading, and that plaintiff should be required to elect on which he should proceed; that the charge of simple negligence as contained in the first count are irrelevant, immaterial, and in no way pertinent, and that a violation of the ordinance did not proximately cause or contribute to the death of the decedent; that the first count is duplicitous in that it contains charges of wanton and simple negligence; that eliminating the charges of simple negligence from the first count, both counts are identical. The case was submitted to a jury which returned a verdict for the plaintiff. Exception was taken to the judgment overruling the motion for new trial as amended and to the order overruling the demurrers.

Maddox, Matthews & Owens, of Rome, for plaintiff in error.

Maddox & Griffin, of Rome, for defendant in error.

FELTON, Judge (after stating the foregoing facts).

1. This was a suit for damages for the willful and wanton killing of the deceased, who was a trespasser. It is conceivable that evidence of the violation of the speed ordinance might be relevant on a question of whether the engineer was wantonly negligent, as in the case of Georgia Railroad v. Williams, 74 Ga. 723, 730, where it was so held. However, under the allegations of the first count of the petition we are unable to see how the violation of the ordinance was relevant to the violation of the duty owed the deceased under the facts alleged in the first count. The deceased was a trespasser. The suit is not based on the failure of the engineer to anticipate the presence of the deceased or others on the tracks; it is not based on his failure to sound an alarm and give warning after the discovery of the deceased on the tracks; it is not based on negligence growing solely out of the violation of the speed ordinance. In all of the above instances the suit would have been for damages based on simple negligence. In the first two instances the railroad might be held liable to a trespasser for simple negligence. In the last it would not. Since the suit is not for simple negligence on account of the violation of the speed ordinance and since no recovery could be had by a trespasser for a violation of...