Southern Ry. Co v. Leonard

Decision Date31 October 1938
Docket NumberNo. 26957.,26957.
Citation58 Ga.App. 574,199 S.E. 433
PartiesSOUTHERN RY. CO. v. LEONARD.
CourtGeorgia Court of Appeals

Syllabus by the Court.

Under the law and the evidence a ver-lict in favor of the defendant was demanded, and the court erred in granting a new trial.

Error from City Court of Columbus; G. Y. Tigner, Judge.

Action by A. L. Leonard, trustee for A. L. Leonard, Jr., against the Southern Railway Company for damages allegedly occasioned by relocation of defendant's track on a certain street. Judgment granting plaintiff's motion for new trial after judgment had been entered on verdict for defendant, and defendant brings error.

Reversed.

A. L. Leonard, Trustee for A. L. Leonard, Jr., filed suit against Southern Railway Company for damages alleged to have been sustained because of the relocation of the defendant's track on a certain street in the City of Columbus, Georgia, the petition alleging substantially as follows: That he was the owner of certain real estate located on the east side of 6th avenue, between Seventh and Eighth Streets, in the City of Columbus, consisting of land known as lots 11, 14 and 15 of the East Common, upon which were located houses numberedfrom 700 to 716, inclusive; that A. L. Leonard, Jr., came into possession of and title to said property by deed, dated December 30, 1935, from A. L. Leonard, as grantor, to A. L. Leonard, Trustee for A. L. Leonard, Jr.; that the defendant moved its track from the center of 6th avenue to the eastern side of the avenue and against the sidewalk in front of plaintiff's houses, as a result of which plaintiff sustained special damage not participated in by the public at large; that because of the change in the location of the track it became necessary for the tenants of the said property to cross defendant's track for egress and ingress to Sixth Avenue; that the impending danger of being hit by the trains of defendant in order to gain access to Sixth Avenue caused the property to be less desirable for tenants and caused the rental value and market value of the property to be diminished; that as a result of moving the track closer to the property smoke, sparks, cinders, and the noise of the trains passing over the track caused the property to be less desirable renting property "as the fire hazard is greater"; that the cinders and smoke constituted a nuisance to the tenants, thereby diminishing the rental and market value of the property, and that these acts of the defendant diminished the rental value of the property in the amount of $200 per annum and the market value of the property to the amount of $700, and judgment for $1000 damages was prayed.

The defendant filed its plea and answer denying liability and thereafter amended, setting up in his plea and answer as amended that in the City of Columbus there was a public street known as 6th avenue which was approximately 132 feet wide, running north and south and traversing other public streets running east and west in said city, including Eighth Street, Seventh Street, Sixth Street and Fifth Street and extending to 4th street; that the west line of the real estate described in plaintiff's petition abutted on the east side of Sixth Avenue between Seventh and Eighth Streets and extended north from Seventh Street for a distance of 224 feet and 8 inches, more or less; that there was no well-defined sidewalk abutting said real estate on the east side of Sixth Avenue, but that the average width of paved sidewalks in said city was about four feet; that in 1932 the city devised a general plan for the improvement of that part of Sixth Avenue lying between Eighth and Fourth Streets, at which time there was located in Sixth Avenue a track of the defendant, lying east of the center line of said avenue and extending from a point north of Eighth Street to a point south of Fifth Street; that, pursuant to said plan, defendant was required by the city, among other things, to relocate at its own expense, a section of the track by moving it farther east; that the section of the track to be relocated extended in a direction slightly from northwest to southeast and a part of the section of track extended in front of the west line of the said real estate abutting on the east side of Sixth. Avenue; that the part of the section of track to be relocated extending in front of said real estate was, at its farthest point, 50 feet, more or less, from the west line of the said real estate and was, at its nearest point, 40 feet, more or less, from the west line of the said real estate, and that the part of the track extending in front of the real estate, after it was relocated, ran substantially parallel with the west line of said real estate and at a distance of approximately 27 feet therefrom; that the track was relocated at a place and grade designated by the city pursuant to the aforementioned plan, that the top of the rail of the relocated track was level with the surface of the ground, that all work done in connection therewith by the defendant was properly done, and that as a result of the relocation of the track neither the plaintiff nor the real estate described in the plaintiff's petition was injured or damaged in any respect whatsoever; that if the plaintiff or the real estate was in any way damaged by the relocation of the track of defendant railway, which defendant denied, defendant was not liable therefor, because the action of the city, in devising the said general plan of improving Sixth Avenue and carrying the plan into effect, including, the requirement by the city that the defendant relocate a section of the track at its own expense, was a reasonable exercise of the authority granted the city under its charter and the general laws of the State, and that since the city was fully authorized by law to improve Sixth Avenue pursuant to the plan devised by it, including the requirement that the defendant relocate its track and do other work in accordance with said plan, the defendant had no alternative other than to comply therewith; that the said general plan was devised solely by the city for the improvement of Sixth Avenue, and that the reloca-tion of the defendant's track was simply a part of the general plan, independent of the use of the avenue by the defendant, the defendant having no interest in relocating the track or in any of the improvements of Sixth Avenue as embraced in the plan that was beneficial to it; that all the work done by defendant in connection with said improvement, including the relocation of its track, was done without a view of securing any benefit to itself, but was done by it solely because it was required by the city so to do, and that if any one was liable for the alleged injury and damage complained of in the plaintiff's petition the City of Columbus was, for the reasons aforesaid, liable; that all of the work done by the defendant was completed on April 5, 1933, and that if the relocation of the track caused any injury or damage to the real estate of plaintiff, or to anyone else, all such injury and damage, past, present, and future, accrued on April 5, 1933, more than four years prior to April 21, 1937, the date of the filing of the suit by the plaintiff, and that if there was any right of action for any or all of such injury and damage it was barred, on April 21, 1937, by the statute of limitations, which in such a case is four years, the defendant especially pleading the statute of limitations as a bar to the present suit.

On the trial of the case the jury returned a verdict in favor of the defendant, and thereafter judgment was entered in favor of the defendant against the plaintiff for the costs of the suit. The plaintiff filed a motion for new trial on the general grounds, and by amendment added several special grounds complaining of the admission of certain evidence. The court sustained the motion and granted a new trial, and to that judgment the defendant excepted and assigns error on the grounds: (a) That the verdict was demanded in favor of the defendant; (b) that the action was barred by the statute of limitations; (c) that the cause of action accrued at a time when the plaintiff did not have title to the real estate involved in the suit, and as the right to bring an action for damage to realty does not run with the land and is not assignable to a successor in title, the plaintiff, as such successor in title, did not have the right to bring the present suit, the uncontradicted evidence showing that the cause of action, if any, accrued on April 5, 1933, and that the plaintiff did not acquire title until Decem ber 13, 1935; (d) that under the plea of the defendant and the evidence the relocation of the track was not done at the instance or request of the defendant but under the requirement of the City of Columbus, pursuant to a general plan devised by the city solely for its benefit, the defendant having no interest in relocating the track and none of the improvement being beneficial to it, and that if any damage was done, the City of Columbus and not the defendant was liable, all work done by the defendant under requirement of the city being properly done and in pursuance of the general plan of the city devised solely by the city for the improvement of Sixth Avenue; (e) that the uncontradicted evidence shows that the real estate involved was not in any way damaged by reason of the relocation of the defendant's track; (f) that the court, for all of the reasons above shown, abused its discretion in granting the motion for new trial, and its judgment was contrary to the law and the evidence.

R. M. Arnold, of Columbus, for plaintiff in error.

W. A. Leonard, of Columbus, for defendant in error.

SUTTON, Judge.

The plaintiff in error recognizes that it is a settled principle of law that the first grant of a new trial will not be disturbed unless it is made to appear that the verdict rendered was the only one that legally could have been rendered under the law and the...

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