Southern Ry. Co. v. Turner
| Decision Date | 25 February 1954 |
| Docket Number | Nos. 34881,34882,No. 1,s. 34881,1 |
| Citation | 81 S.E.2d 291,89 Ga.App. 785 |
| Parties | SOUTHERN RY. CO. v. TURNER. CITY OF ATLANTA v. TURNER |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1, 2. It not appearing from the petition as a matter of law that the plaintiff's husband was negligent, or that his negligence was the sole proximate cause of his death, the general demurrers of both defendants were properly overruled.
3. The demurrers to allegations as to a particular item of damages suffered by the plaintiff's minor daughter on account of the death of the plaintiff's husband were improperly overruled. Such damages do not constitute a separate item of recovery, and are recoverable only as a part of the value of the life of the deceased.
4. The remaining grounds of special demurrer are without merit.
Emma Jane Turner sued the City of Atlanta and Southern Railway Company for damages on account of the death of her husband. The petition as amended, omitting formal parts, alleged substantially the following: that on May 22, 1951, the plaintiff's husband was killed as a result of the concurring negligence of the defendants; at about 10:30 a. m. on that date, her husband, Archie Frank Turner, was riding on a truck belonging to his employer, which was being driven by a fellow employee; that said truck was an open-type one having no roof; that the decedent was standing on the rear of the truck holding onto a hoist which extended above the highest point of the truck; that it is a common practice of the City of Atlanta for trucks to haul cargoes which extended above the highest point of the truck, and the use of the truck at the time of the occurrence complained of was in the ordinary and usual mode of travel on the streets of the City of Atlanta; that said truck was being driven eastward on Glenn Street in the City of Atlanta approaching the west entrance of an underpass known as the Glenn Street Underpass, over which passed the railroad tracks of Southern Railway Company; that the driver of said truck, seeing that the truck and hoist would clear or pass under the viaduct and clear the overhead beams at the west end of the viaduct, assumed that they would also clear at the east end thereof, and proceeded to drive the truck eastward through the underpass; that, as said truck was proceeding through the underpass the top of the hoist onto which the plaintiff's husband was holding struck an overhead beam of said underpass, throwing her husband from the truck, and as a result he received bodily injuries which caused his death on that day; that, at the time of the occurrence aforesaid, Southern Railway Company owned the Glenn Street Underpass, which it had constructed around 1913 or 1914; that no change had been made in the underpass since its construction; that the underpass was located within the City of Atlanta; that Glenn Street is not a State road and has never been designated as a State or State-aid road, and is not a county road; that said underpass was constructed prior to 1927 and the passage of the act approved August 23, 1927, Ga. L. 1927, p. 299, which act has no application to said underpass; that at its west entrance the vertical distance from the underpass beam to the center of the street is 10 feet, 8 1/8 inches, and the vertical distance from said beam to the south curb is 11 feet, 2 inches, and the vertical distance from said beam to the north curb is 11 feet, 3 3/4 inches; that the height of the beams overhead decreased at an irregular rate, so that at the east entrance the vertical distances from the overhead beam to the street were 11 feet, 1/4 inch, at the south curb, 10 feet, 5 3/4 inches at the center, and 11 feet, 3 1/4 inches at the north curb; that the fact that there was less clearance at the east end than at the west end caused the hoist to strike a beam near the east end; that there were no warning signs to indicate the clearance under the underpass; that the underpass was 92 feet long; that it consisted of concrete beams running the entire width of the underpass, which were...
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