Wright Contracting Co. v. Davis, 34981

• Decision Date: 30 June 1954
• Docket Number: No. 34981,No. 1,34981,1
• Citation: 90 Ga.App. 548,83 S.E.2d 232
• Parties: WRIGHT CONTRACTING CO., Inc. v. DAVIS
• Court: Georgia Court of Appeals

Page 232

83 S.E.2d 232

90 Ga.App. 548

WRIGHT CONTRACTING CO., Inc. v. DAVIS.

No. 34981.

Court of Appeals of Georgia, Division No. 1.

June 30, 1954.

Rehearing Denied July 27, 1954.

Syllabus by the Court.

1. The petition was not subject to the general demurrers.

2. The special demurrers attacking the allegations of negligence contained in the petition on the ground that no causal connection between them and the plaintiff's injuries and damages was shown, should have been sustained. The remaining grounds of special demurrer were without merit.

Peacock, Perry & Kelley, Albany, Hatcher, Smith & Stubbs, Columbus, for plaintiff in error.

Farkas, Landau & Davis, Albany, for defendant in error.

QUILLIAN, Judge.

The petition in this case, as amended, omitting formal parts, reads as follows: 'The petition of (Mrs.) Mabel Davis, as temporary administratrix of the estate of John W. Davis, deceased respectfully shows:

'(1) John W. Davis died on the 12th day of June, 1953, and petitioner was appointed, and duly qualified as temporary administratrix of the estate of the said John W. Davis on the 17th day of June 1953. The deceased, John W. Davis, was the husband of (Mrs.) Mabel Davis.

'(2) Defendant, Wright Contracting Company, Inc., is a corporation, with an office and place of doing business and an agent in Doughterty County, Georgia.

'(3) Defendant Wright Contracting Company, Inc., was on or about the 6th day of June, 1953, and for several weeks prior thereto, engaged in resurfacing a public road known as U. S. Highway No. 19, and State Highway No. 3, from Albany, Georgia, south to the Mitchell County line, a distance of approximately ten miles.

'(4) Said Wright Contracting Company, Inc., was engaged in the resurfacing of said highway and was in actual charge of construction and resurfacing of said highway at the time of the accident hereinafter alleged.

'(5) Said highway from Albany south to the Mitchell County line is a very heavily traveled road, being one of the main north [south] arteries in the Federal system of highways in the United States, and one of the main arteries of the highuway system of the State of Georgia. This fact was well known to Wright Contracting Company at the time the said defendant undertook to resurface and recondition said road.

'(6) Defendant Wright Contracting Company, Inc., was engaged in resurfacing said road by placing layer upon layer of an asphalt type material on said road, thereby elevating said road up to a distance of eighteen inches above the highway, said elevation varying from place to place on said road. Said elevation of the road made travel by vehicular traffic on said road extremely hazardous and unsafe for motorists by reason of the fact that any slight deviation of the wheel in steering would cause a vehicle to run off of said elevated highway, and make it almost impossible to return to the highway without turning the car over or losing control, where a vehicle once left the highway.

'(7) On or about June 6th, 1953, at approximately 1:15 p. m., John W. Davis, was proceeding south on said highway, driving his new 1953 Studebaker, alone, and approximately eight miles sough of Albany on said highway, when the right wheels of the said John W. Davis' car left the highway at a point where the paved surface of the road was elevated approximately 6 to 8 inches above the shoulders of the road, the left wheels of the car remaining on the paved surface of the road, and said John W. Davis, in attempting to steer his car back on the road struck the side of the elevated paved surface, which caused his car to go out of control, and swerve to the left side of the road and hit a telephone pole on the right-of-way, on the left or east side of said highway. Said John W. Davis was thrown into and through the windshield of his automobile and received a mortal wound. Said John W. Davis was rushed to the Phoebe Putney Memorial Hospital in Albany, Georgia by ambulance, lingered for six days and died in said hospital.

'(8) The proximate cause of the death of John W. Davis was the negligence of the defendant, Wright Contracting Company, Inc., in the following particulars:

'a. Said defendant in undertaking to resurface said road, elevated said paved surface of the road a distance of approximately six to eight inches above the shoulders of the road at the point where said John W. Davis' automobile left the paved surface of the road and attempted to return to the paved surface, said elevation over the adjoining shoulders constituting a dangerous and hazardous condition which the said defendant created and maintained in resurfacing said highway.

'b. Said road was maintained during the period of resurfacing by defendant in a dangerous condition on a heavily traveled highway, in that no center line or other suitable marking system was provided to assist motorists in negotiating said highway, and in correctly estimating the relative position of a vehicle on the highway. The dangerous situation created by the failure to provide a center line or other marking system was exaggerated and increased by the fact that the newly resurfaced road was uniform in color and appearance.

'c. Said defendant was negligent in the manner of constructing the edges of said highway, in that same were left in a rounded off or beveled condition,...