Western & A. R. Co. v. Davis, s. 43235

Decision Date01 December 1967
Docket NumberNos. 43235,No. 1,43236,s. 43235,1
Citation159 S.E.2d 134,116 Ga.App. 831
PartiesWESTERN & ATLANTIC RAILROAD COMPANY v. Patricia DAVIS et al. Patricia DAVIS et al. v. WESTERN & ATLANTIC RAILROAD COMPANY
CourtGeorgia Court of Appeals

Syllabus by the Court

1. (a) Upon demurrer the court may supply neither essential allegations of fact for a deficient petition nor allegations of fact to render a petition defective upon its face.

(b) Under the allegations of the petition in this case it is a jury question whether the negligence of one defendant in maintaining an obstruction to view at a railroad crossing concurred as the proximate cause of the injury with the negligence of another defendant operating the injury-inflicting train, which was obscured from the view of the plaintiff.

2. (a) Where a demurrer is directed to two paragraphs of a petition, and one of the paragraphs is not subject to the criticism urged, the demurrer is properly overruled.

(b) In a wrongful death action brought by a widow for the homicide of her husband, an allegation that the action is brought also for the benefit of the three children of plaintiff and decedent, giving their names and ages, is not authorized by Code §§ 105-1302 or 105-1304 and is properly stricken on demurrer.

3. (a) A provision in a deed executed by a railroad company to a municipality, conveying an easement across the railroad tracks for street purposes, reciting that the municipality shall assume 'the entire cost of' crossing-protection devices, does not relieve the railroad from whatever responsibility it may have to errect and maintain the devices; it simply obligates the municipality to pay for the devices when the railroad has installed them.

(b) It is error to sustain a renewed special demurrer after amendment curing the defect complained of.

(c) A special demurrer must be perfect in itself, and if any part of it is bad, the entire demurrer is bad. Where a special demurrer raises two or more objections to a portion of a petition or answer, one of which objections is deficient, an appellate court will not consider the other, as the deficient part renders the whole demurrer imperfect.

(d) An allegation in an answer germane to the defense asserted is not subject to special demurrer on the grounds that it is immaterial, irrelevant, and not defensive to the action.

(e) The trial court having failed to rule on certain grounds of demurrer because of the posture of the case in that court after other rulings in demurrer, this court will not undertake to pass upon the demurrers as an original proposition.

Patricia Davis brought suit against the Western & Atlantic Railroad Company and the Southern Railway Company for the wrongful death of her husband who was killed when the automobile he was driving was struck by Western and Atlantic's train, the 'Georgian,' at a public crossing in Dalton. The petition seeks recovery for the concurrent negligence of the two railroads and alleges substantially as follows:

Plaintiff's decedent was operating his automobile in an easterly direction on Industrial Boulevard not more than 75 feet behind a car being operated by Brown. When the Brown car reached the Industrial Boulevard crossing it slowed and then proceeded across the two switch tracks and the two main line tracks, with plaintiff's decedent still following not more than 75 feet behind. At the same time the Georgian was traveling north toward the crossing at a speed of 55 m.p.h. Both defendants had placed railroad cars on their switch tracks to the south of the crossing which obstructed decedent's view to such an extent that he was unable to see the train approaching from that direction until he was already on the tracks of the approaching train, when the collision occurred.

It was further alleged that the obstruction to view created a special hazard so that the defendants should have maintained a mechanical signal device or watchman to warn traffic of approaching trains; that neither of the defendants maintained any mechanical signal device or watchman at the crossing; and that the whistle on the Georgian was not blown at any point within 400 yards of the crossing, nor was the bell rung. Specifications of negligence as to Western and Atlantic are: failure to ring the bell of the train in violation of a city ordinance; failure to blow the whistle in violation of Code Ann. § 94-506; failure of its engineer to exercise due care in approaching the crossing as required by Code Ann. § 94-506; operation of the train at a speed of 55 m.p.h. in violation of a city ordinance; failure to maintain safety signals, safety lights or watchmen at the crossing in violation of a city ordinance; and failure to keep the train under such control as was necessary to stop the train at the crossing, in violation of a city ordinance. Allegations of negligence on the part of Southern are failure to maintain safety signals, safety lights or watchmen at the crossing in violation of a city ordinance; negligence in placing its cars on the siding just south of the crossing where it knew or should have known that these would block the view of persons entering the crossing from the west of trains of either defendant approaching the crossing from the south; and failure to maintain a mechanical signal device or watchman under such circumstances, constituting a hazard to persons so entering upon the crossing. Both defendants are charged with negligence in maintaining the obstructions to view on the southwest side of the crossing and the failure, under these circumstances, to maintain a mechanical signal device or watchman to warn motorists of trains approaching from the south.

Western & Atlantic appeals from an order overruling its general demurrer, and plaintiff appeals from an order sustaining the general demurrer of Southern. Errors are enumerated on various other rulings on the pleadings.

Mitchell & Mitchell, D. W. Mitchell, Jr., Dalton, for appellant.

McDonald, Longley, McDonald & McDonald, C. Ernest McDonald, E. Crawford McDonald, Hazel C. McDonald, Pittman & Kinney, L. Hugh Kemp, Dalton, for appellees.

EBERHARDT, Judge.

The appeal of Western & Atlantic was originally to the Supreme Court on the grounds that that court had jurisdiction by virtue of a constitutional attack made upon certain city ordinances pleaded and relied upon by plaintiff, an issue which falls within the jurisdiction of this court. Shipman v. Johnson, 210 Ga. 174, 78 S.E.2d 515; Beard v. City of Atlanta, 211 Ga. 25(2), 83 S.E.2d 594. Consequently the Supreme Court transferred both cases to this court. Western & Atlantic R.R. Co. v. Davis, 223 Ga. 622, 157 S.E.2d 457. Since the judgments appealed from were entered June 15, 1967, the provisions of the Civil Practice Act have no application. Abercrombie v. Ledbetter-Johnson Co., 116 Ga.App. 376, 378, 157 S.E.2d 493.

1. (a) Both defendants contend in support of their general demurrers that the allegations of the petition, being construed against the pleader, show that the sole proximate cause of the collision and death of plaintiff's husband was his failure to exercise ordinary care for his own safety. This contention is not meritorious.

We note first of all some confusion on the part of defendants in regard to the physical layout of the scene as alleged in the petition. The petition alleges that decedent was crossing from west to east and that the obstructions caused by defendant's railroad cars on their switch tracks occurred on the southwest side of the crossing so as to block the view, from the standpoint of persons crossing from the west, of trains approaching from the south. Hence arguments of the defendants based upon the assumption that decedent was crossing from east to west, or that the switch tracks upon which the cars were located were on the east side of the crossing, are not well taken.

The chief difficulty with defendants' contention, however, is that it calls upon this court to supply facts not alleged in the petition. We accept as a legal truism that this court may neither supply essential allegations for a deficient petition nor may we supply allegations to render a petition defective. Ford Motor Co. v. Williams, 219 Ga. 505, 134 S.E.2d 32. There is a fundamental difference between a court's construing a petition against a pleader and drawing unfavorable inferences from the facts pleaded on the one hand, and supplying the facts in the first instance, from which the inferences and conclusions of law are sought to be drawn, on the other. What defendants call upon us to do is in essence to supply an allegation of distance between the switch tracks, where decedent's vision was obscured, and the main line track of Western & Atlantic, on which the collision occurred. We are then asked to conclude as a matter of law that this was a 'sufficient distance' in which decedent could have looked to the south, observed the approaching train, and applied his brakes before reaching Western & Atlantic's main line track.

This case is here on demurrer, and we must take the allegations of the petition as being true. We can not add facts not alleged. The petition alleges that both defendants placed railroad cars on their respective switch tracks on the southwest side of the crossing which obstructed decedent's view as he approached the crossing from the west so that he could not see trains of either defendant approaching from the south until he was upon the track of the approaching train. This is an allegation of an ultimate fact, and we can not say as a matter of law on demurrer that decedent could have seen the approaching train and stopped short of the main line track in time to avoid the collision. Callaway v. Pickard, 68 Ga.App. 637, 23 S.E.2d 564; Reed v. Southern Ry. Co., 37 Ga.App. 550(4), 140 S.E. 921. A cursory reading of Moore v. Seaboard Air Line Ry. Co., 30 Ga.App. 466, 118 S.E. 471; Coleman v. Western & Atlantic R.R....

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