Opinion
34544.
DECIDED MARCH 10, 1953.
Action for damages; from Whitfield Superior Court — Judge Paschall. January 6, 1953.
Pittman, Hodge Kinney, for plaintiff in error.
Malcolm C. Tarver, Mitchell Mitchell, contra.
1. Where, in an action for damages to his automobile, the plaintiff brought an action jointly against two railroad companies and alleged that each defendant, in violation of its duty under Code § 94-503, was negligent in specified particulars in its maintenance of a certain street crossing where the tracks of one defendant were parallel to, and adjacent to, those of the other defendant, that, by striking the defect on the right-of-way of the one defendant, the plaintiff's automobile was thrown out of control and against the defect on the right-of-way of the other defendant, and that the negligence of each defendant concurred to cause the resulting damage to his automobile — a cause of action was sufficiently alleged to withstand a general demurrer in the absence of any allegations tending to negative those stated above.
2. A railroad company may not relieve itself of the duty imposed upon it by Code § 94-503 by showing that under a contract with a municipality in which the street was located, or with one of its departments, the railroad company was to be saved harmless for any defects in the street crossing caused by the municipality's excavating the street crossing to lay a sewer line, and that the defects which caused the plaintiff's damage had been caused by the excavation made for the sewer line. Nor would a third person's liability under Code § 95-601, for cutting a ditch across a public road, relieve the railroad company of its duty to maintain the street crossing in good order.
DECIDED MARCH 10, 1953.
R. E. Dunn brought an action against Southern Railway Company and Western Atlantic Railroad Company seeking to recover damages to his automobile in the amount of $300. The material allegations of the petition are substantially as follows: On October 10, 1952, the plaintiff was driving his automobile east along East Emory Street in the City of Dalton, Georgia, at the point at which that street crosses the lines of the two defendant railroads, having first entered upon the line and right-of-way occupied by the Southern Railway Company, which crosses East Emory Street, and thence driven upon the right-of-way occupied by the Western Atlantic Railroad, which also crosses East Emory Street. He was proceeding at the rate of ten miles per hour when, after crossing the main line of the Southern Railway Company and proceeding about nine feet to a point still on the right-of-way occupied by the Southern Railway Company, the two front wheels of his automobile entered two depressions in the street. The depressions were holes six to eight inches in depth and approximately three feet in circumference. The right front wheel of his automobile entered the hole on the south side of the street, and the left front wheel entered the hole just north of the first hole by approximately four or five feet. The plaintiff was driving his automobile on the right-hand side of the street on that part of the street provided for the passage of vehicles traveling eastward along that street. When the plaintiff's automobile ran into the aforementioned holes, the resulting jar caused the plaintiff to lose control of the automobile, and it thereupon proceeded eastward along the street crossing to a point about twelve feet west of the main line of the Western Atlantic Railroad, where it ran into a ridge extending entirely across the said street on the right-of-way of the Western Atlantic Railroad. This ridge was about one foot high and was located on a steep embankment upon which the main line of the Western Atlantic Railroad is constructed. The ridge rises to that height from the street in a distance of approximately eight inches. The frame of the plaintiff's automobile struck this ridge and the automobile was damaged in the particulars enumerated. The plaintiff alleges that it was the duty of the defendants to maintain the street crossing where it crossed the rights-of-way occupied by the defendants in a condition reasonably suited for travel of vehicles operated by persons in the exercise of ordinary care. The defendant Southern Railway Company was negligent in allowing the two holes to remain, without repair, on the portion of the rights-of-way across said street of which it was in possession and control. The said holes could not be seen by a person operating an automobile as did the defendant in approaching the crossing in an eastward direction, because the main line of the Southern Railway Company was located on an elevation of some two or three feet above the level of the street, and the hood of the plaintiff's automobile obstructed his view of the holes which lay immediately ahead upon approaching the Southern Railway Company's main line from the west. The Southern Railway was under the duty to keep said street at that point across the right-of-way occupied by it in repair, and was lacking in ordinary care in its failure to do so. The defendant Western Atlantic Railroad was under a similar duty to maintain said crossing over its right-of-way, adjoining the right-of-way occupied by the Southern Railway Company, in a condition so that it might be traveled with safety by persons operating vehicles thereon. In the exercise of ordinary care Western Atlantic Railroad was negligent in having on its right-of-way, parallel with its tracks and across the street, the high ridge into and against which the plaintiff's car was thrown after the plaintiff lost control thereof because of having run into the two holes on the right-of-way occupied by the Southern Railway. The injury and damage to the plaintiff's car was caused by these concurring acts of negligence on the part of the two defendants. The plaintiff was in the exercise of ordinary care in the operation of his automobile and could not by the exercise of ordinary care avoid the damage thereto.
Southern Railway Company's general demurrers, filed with its plea and answer, were overruled and it excepted. In addition to its general denial of liability, that company added other allegations of an exculpatory nature to its plea and answer, which are substantially as follows: On October 10, 1952, and at all times prior thereto, the defendant maintained the Emory Street crossing upon its right-of-way in a condition reasonably suited for travel by vehicles and persons operating the same in the exercise of ordinary care, and kept the crossing in good order at its own expense according to the spirit of the road laws of the State of Georgia and in compliance with Code § 94-503. For reasons disconnected from the defendant's business, the Water, Light Sinking Fund Commission of the City of Dalton, an agency of the City of Dalton, made deep excavations on Emory Street across the defendant's right-of-way and under its track for the purpose of installing sewer lines to serve the inhabitants of the City of Dalton. The sewer line had been installed by the City of Dalton a few days before October 10, 1952. The exact time is unknown to the defendant. The pipes had been covered and the ditch filled with soil, but the work of completing the filling of the excavation and repaving the same was incomplete on October 10, 1952. The defendant is informed and alleges that this work was done by Concrete Construction Company, a corporation of Atlanta, Georgia, for the Water, Light Sinking Fund Commission of the City of Dalton, under a contract, the exact terms of which are unknown to the defendant. Nothing the defendant did or failed to do in connection with its duty to keep the crossing in good order, as required by law, had anything to do with such holes as may have been in Emory Street on October 10, 1952, as the Water, Light Sinking Fund Commission, the City of Dalton and/or their contractor created the same and are fully responsible therefor. The defendant's duty to keep crossings in good order is a duty imposed upon it only "according to the spirit of the road laws" by virtue of Code § 94-503. Both under the "spirit of the road laws" and the specific language of the road laws embodied in Code § 95-601, and other laws in such cases provided, those who alter or cut any ditch across any public road are "liable for all damages any person may sustain thereby." The defendant did not alter or cut any ditch across any public road are "liable for all damages any person may sustain thereby." The defendant did not alter or cut any ditch across Emory Street, nor is it liable for any damage any person may have sustained by reason of the alteration or cutting of any ditch across or upon Emory Street in the City of Dalton. Further answering, the plaintiff suffered no damage as a result of any alleged defect in Emory Street upon the defendant's right-of-way, or at any point where this defendant was at any time under any duty to keep any portion of Emory Street in good order. On April 21, 1952, the defendant entered into a contract with the Board of Water, Light Sinking Fund Commissioners of the City of Dalton and the City of Dalton, under the terms of which the sewer lines were placed under its rail lines and upon its right-of-way along Emory Street in the City of Dalton. Under the terms of the contract, the Water, Light Sinking Fund Commission and the City of Dalton assumed all risks in connection with the installation and maintenance of the sewer line and covenanted to indemnify and save harmless the defendant against all risk, loss, injury, damage, or expenses accruing from or by reason of the construction, maintenance, and use of said sewer line upon and across the defendant's right-of-way. Independently of the contract, the City of Dalton is clothed with the power of eminent domain, and the defendant is not liable for any defect caused by the City of Dalton within the powers it may have exercised either under the contract or under the law.
The plaintiff demurred specially to those averments of the answer setting up the contract with the City of Dalton and the Water, Light Sinking Fund Commission and defects caused by the City of Dalton in its exercise of its power of eminent domain, as defenses. The trial court sustained these special demurrers and struck these allegations from the answer. The defendant also assigns error on this judgment.
1. The plaintiff, in effect, alleged in his petition that each of the two defendant railway companies, in violation of its duty to keep the street crossed by its tracks in good order according to the spirit of the road laws, was negligent in specified particulars in its maintenance of Emory Street in the City of Dalton where that street is crossed by the rights-of-way of the respective railway companies, and that the negligence of each of the two companies concurred to cause the plaintiff's damage. As against a general demurrer, the petition showed negligence on the part of the defendant railway companies in failing to keep the street crossing in good order, and that such negligence was the cause of the damage to the plaintiff's automobile. Atlanta, Birmingham Coast R. Co. v. Smith, 43 Ga. App. 457 ( 159 S.E. 298); Central of Georgia Ry. Co. v. Dumas, 44 Ga. App. 152 (7) ( 160 S.E. 814). And in the absence of allegations negativing these general allegations under a proper construction of the petition, the case must go to the jury for a determination of the questions of diligence and negligence, including contributory negligence, and proximate cause.
It does not appear from this record that the defendant Western Atlantic Railroad interposed any demurrers to the petition. Counsel for Southern Railway Company contend, however, that, since it is alleged that the defendant was proceeding across the crossing from west to east, and the right-of-way of Southern Railway Company is west of that of the Western Atlantic Railroad, the holes into which it is alleged the front wheels of the plaintiff's car dropped, causing him to lost control of the car, were on the right-of-way of the Southern Railway, and that, since it is alleged that the plaintiff "having first entered upon the line and right-of-way occupied by the Southern Railway Company in crossing said East Emory Street and thence driven upon the right-of-way occupied Western Atlantic Railroad by its line in crossing said street," the petition shows on its face that, since the plaintiff "drove" his car onto the Western Atlantic Railroad right-of-way, where it struck the described ridge, the plaintiff had regained control of his car after striking the holes on Southern Railway Company's right-of-way. Counsel for Southern Railway Company also contend that, since the holes were six inches deep and three feet in circumference, and that the automobile was proceeding at only ten miles per hour, common sense must tell the court that driving an automobile into such holes at such a speed will not cause the driver to lose control of it; and that, even so, it does not appear why the defendant did not regain control as the car proceeded along the street from the holes on the one right-of-way to the alleged barrier or ridge on the other; and that it does not appear that the plaintiff's car did anything while out of control that it would not have done had he driven, under control, onto the Western Atlantic Railroad right-of-way and into the ridge which extended the entire width of the crossing, parallel to the tracks, and that, therefore, no cause of action is alleged.
We cannot agree with those contentions. The defendant Southern Railway Company did not require the plaintiff by special demurrer to state with greater particularity in what manner the front wheels of his car struck the holes or in what manner his loss of control caused him to strike the barrier or ridge. The plaintiff says that striking the holes caused him to lose control of the car, and that the loss of the control of the car caused him to strike the barrier. It does not appear what distance separated the holes from the barrier, and we cannot say as a matter of law that these things did not occur or that the driver while traversing what is to us an unknown distance should have regained control of his automobile. The phrase, "to drive a vehicle," does not conclusively connote that the vehicle driven is under the control of the driver at all times. The general allegations, as to the plaintiff having driven along Emory Street, and having first entered the right-of-way of Southern Railway Company, and having driven then upon the right-of-way of Western Atlantic Railroad, do no more than establish the situs of the events which occurred and the relation of the one right-of-way to the other.
2. The trial court did not err in sustaining the special demurrers to the defendant's answer, as the averments which were stricken from the answer contained no defense to the plaintiff's action for the defendant's breach of its statutory duty. If the City of Dalton caused the holes on the one right-of-way and the ridge on the other in the exercise of eminent domain, the answer does not positively allege that such was the case — that the city exercised such power.
It is elementary that, where a duty is imposed by statute upon a class, such class cannot relieve itself of that duty by contract. Mixon v. Savannah Atlanta R., 28 Ga. App. 390 (2) ( 111 S.E. 690); Atlanta Fla. R. Co. v. Kimberly, 87 Ga. 161, 167 ( 13 S.E. 277, 27 Am. St. R. 231).
Whether or not the City of Dalton or the Water, Light Sinking Fund Commission, or their contractor would, under the provisions of Code § 95-601, be liable for causing the alleged defects in the rights-of-way, in no way changes the present defendant's duty to keep the crossing in good order. See, in this connection, Byne v. Mayor c. of Americus, 6 Ga. App. 48 ( 64 S.E. 285).
Judgments affirmed. Gardner, P. J., and Townsend, J., concur.