Trammell v. Matthews
| Decision Date | 16 July 1951 |
| Docket Number | 33647,No. 2,Nos. 33631,s. 33631,2 |
| Citation | 66 S.E.2d 183,84 Ga.App. 332 |
| Parties | TRAMMELL v. MATTHEWS. MATTHEWS v. TRAMMELL |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. Plaintiff's petition as amended set up a cause of action for submission to the jury and the trial court properly overruled the general demurrers interposed thereto.
2. The plaintiff's amendments having met the grounds of special demurrer urged to certain paragraphs of the petition, the court properly overruled these grounds of the demurrer.
3. The court properly struck paragraph 26 and erred in striking paragraph 35(d) as set forth in the cross bill.
Mrs. Virginia Elaine Matthews, hereinafter called the plaintiff, filed suit in Whitfield Superior Court against L. N. Trammell, hereinafter called the defendant, and alleged that the defendant had injured and damaged her in the sum of $75,000; that in December 1948, the defendant operated a construction business under the name of Trammell Construction Company; that the nature of the business carried on by the defendant was that of road and bridge contractor and builder, that on December 9, 1948, the defendant was engaged in the construction of a bridge over Swamp Creek on U.S. Highway 41, known as the Dixie Highway, in said State and County, several miles south of Dalton; that the defendant and his servants had torn out the bridge over this creek and were in the act of building a new bridge at the location of the old bridge; that at the time one or more concrete beams had been installed in the foundation for the new bridge, the top of the beam being about 18 inches below the level of the finished road bed when completed; that between the South end of the proposed bridge and the nearest beam was an open space of about 12 feet; that no covering had been laid over the beam at the time; that this highway was a heavily travelled public highway at this place; that the defendant had notice of this fact; that on the South of the bridge, around 200 to 300 feet, a paved detour had been established around the bridge, with the detour leaving the highway at a slight angle, with the surface of the detour being dark pavement of a similar appearance to that of the highway; that at the approximate North point of the departure of the detour from the highway, a partial and inadequate road block had been established, blocking a part of the road; that for a distance of several hundred feet North and South of the said open bridge, the highway was straight; that on said December 9, 1948 at about 4:30 A.M. a 1940 Nash automobile approached the bridge from the South with James D. Raymond driving; that Floyd E. Matthews, Sr., plaintiff's husband, was riding in this car as a passenger; that the car was being operated at a reasonable speed; that because of the fact that the defendant had not properly marked and blocked the highway South of the bridge, the car was driven into said open bridge space, with the windshield striking the concrete beam about 12 feet North of the South end of the pavement, at the bridge, and the car going through to the ground and water underneath, injuring the plaintiff's husband from which injuries he died several hours later; that the highway is a heavily traveled through road and was at the time, without any road signs or warnings having been posted by the defendant South of said partial road block, to warn the public that they would be approaching a place of danger, or any warning sign that the bridge on the highway was out at the time; that the road block a short distance South of the open bridge did not completely block the road; that the block was so placed that the car driver could have reasonably assumed that the block was not a warning that the road was completely blocked and the bridge was out or impassable; that no watchman was stationed at the road block to warn the public, including the driver of this car, that the bridge was out; that her husband lived in Missouri and the driver of the car lived in Nebraska and neither were familiar with the road; that it was still dark when the accident took place; that in the exercise of ordinary care, the defendant should have placed lighted signs several hundred feet South of the partial road block properly lighted, to have properly warned the public, including the driver of the car, that the bridge was out; that in the exercise of ordinary care, the defendant should have placed lighted signs several hundred feet South of said detour, directing the public to take the detour and not to try to continue along the road to where the bridge was out; that prior to said date, the defendant had notice that the road was inadequately marked and blocked to guard against damaging and injuring the traveling public; that the defendant was negligent in the following particulars: In failing to place any marker or sign along the highway at any point within 1,000 feet South of the detour, warning plaintiff's husband and the driver of the car of the dangerous condition of the highway because the bridge was torn out; in failing to provide a detour sign at the detour South of the bridge; in not providing a complete road block at the intersection of the highway and detour, preventing the car in which her husband was riding from continuing North along the highway North of the partial block; in not having a watchman stationed at the intersection of the highway and detour South of the bridge; and in placing the partial road block in such manner that it was misleading to a person not familiar with the road in that it conveyed the impression that only that portion of the road was intended to be closed.
The defendant, L. N. Trammell, demurred generally to the petition and moved to dismiss the same as setting forth no cause of action against the defendant.
The defendant demurred specially to various paragraphs of the petition as being conclusions and moved to strike the same.
The plaintiff amended her petition by adding at the end of paragraph 12 thereof that 'Said detour leading off the shoulder of the said highway at a sharp descent so as to prevent the lights of a car from disclosing same to the vision of a driver of such car approaching from the South,' by adding to the 13th paragraph that there being sufficient room on the West side of the partial road block for a car to pass around same without leaving the pavement in proceeding North toward the point where the bridge was out; striking paragraph 14 and adding as paragraph 14 that at a distance of about 200 feet South of the partial road block the highway curved sharply to the East and continued up a steep grade to the top of the hill and then curved westerly, all of which prevented the driver of the car approaching from the South from seeing the partial road block until within a short distance thereof; and by adding to paragraph 21 that the pavement around the West end of the partial road block gave the appearance of being in use as a by-pass by reason of same having been used as an ingress and egress for trucks carrying material to the opening where the bridge was being constructed. The plaintiff again amended her petition by striking paragraph 17 wherein she alleged that the driver of the car was proceeding at a reasonable speed.
The plaintiff amended her petition a third time by adding to paragraph 13 thereof that the space between the West end of the partial road block and the West edge of the...
To continue reading
Request your trial
-
Stone Mountain Mem'l Ass'n v. Amestoy
...vehicle, which was hauling house-trailer, nearly blocking the entire roadway after making a lefthand turn); Trammell v. Matthews , 84 Ga.App. 332, 338–39, 66 S.E.2d 183 (1951) (holding that there was a question for the jury as to negligence when plaintiff alleged, inter alia , “that had the......
-
Ballenger Paving Co. v. Gaines
...96 Ga. App. at 777, 101 S.E.2d 603 (failure to place barricades, torches, red flags or other warning devices); Trammell v. Matthews, 84 Ga.App. 332, 338(1), 66 S.E.2d 183 (1951) (failure to provide proper barricades, lighted signs and warnings at road block); see also Mathis v. Nelson, 79 G......
-
Building Investments, Inc. v. Jackson
...69; Moore v. Shirley, 68 Ga.App. 38(3), 21 S.E.2d 925; Georgia Power Co. v. Blum, 80 Ga.App. 618, 57 S.E.2d 18; Trannell v. Matthews [84 Ga.App. 332, 66 S.E.2d 183], supra, and Rogers v. Johnson [94 Ga.App. 666, 96 S.E.2d 285], supra.' Sheppard v. Martin, 100 Ga.App. 164, 166, 110 S.E.2d 42......
-
Brown v. Atlanta Gas Light Co., 36914
...liability for its negligence in so doing. Georgia Ry. & C. Co. v. Thompkins, 138 Ga. 596, 598, 599, 75 S.E. 644; Trammell v. Matthews, 84 Ga.App. 332, 337, 66 S.E.2d 183. It is clear that the city did not intend to relieve the defendant of liability because the ordinance granting the franch......