Opinion
33456.
DECIDED JULY 14, 1951. REHEARING DENIED JULY 27, 1951.
Damages; from Whitfield Superior Court — Judge Paschall. December 7, 1950.
Walton Whitwell, Mitchell Mitchell, for plaintiff in error.
M. C. Tarver, contra.
1. The exceptions pendente lite filed on December 5, 1950, to the overruling of certain of the defendant's special demurrers are treated as abandoned.
2. Where in passing upon special demurrers to a petition, the trial court overrules certain of them and sustains others and rules that "the petition is hereby dismissed unless the plaintiff amends her petition within ten days to meet the criticisms of the demurrers," and within the ten-day period of indulgence, the plaintiff tenders amendments for that purpose which are duly allowed, subject to demurrer, and on a later date, but still during the ten-day period allowed for amendment and at the same term, notice is given counsel for the defendant that on a given day within that period (the ten-day period allowed for amendment) the same amendments will be reoffered and orders requested reallowing the amendments and overruling the defendant's demurrers, and on the given day within the ten-day period and at the same term, the court reallows the amendments, subject to demurrer and no additional demurrers are filed and the court overrules the defendant's demurrers, the latter order in effect adjudged that the amendments sufficiently met the criticisms of the demurrers which had formerly been sustained by the earlier order.
3. Where in such circumstances, as indicated in the previous headnote, the defendant preserves no exceptions, either by exceptions pendente lite or in the bill of exceptions, such later judgment overruling the demurrers established the sufficiency of the amendments to meet the criticisms of the demurrers, and right or wrong, is the law of the case.
4. Where too, in such circumstances, the defendant by a motion to set aside the later order and strike the case from the docket on the ground that such amendments do not meet the criticisms of the demurrers, it is not error to overrule such motion in the absence of a defect apparent on the face of the record and the pleadings.
5. While an amendment to a petition may open the pleadings to demurrer anew, it does not open them to new rulings upon the identical questions previously adjudicated.
6. Under the allegations of counts 1 and 2 a cause of action is stated as against general demurrer.
DECIDED JULY 14, 1951. REHEARING DENIED JULY 27, 1951.
Mrs. Marie Hughes brought an action for damages against the Western Atlantic Railroad on November 10, 1950. On November 27, 1950, the defendant interposed certain special demurrers upon which the court on November 28, 1950, entered the following order: "After hearing the within demurrer grounds two (2), three (3), seven (7), eight (8), and nine (9) are sustained and the petition is hereby dismissed unless the plaintiff amends her petition within ten (10) days to meet the criticisms thereof. The other grounds [1, 4, 5, 6, 10, and 11] are overruled." The defendant, on December 5, 1950, duly filed its exceptions pendente lite to so much of the foregoing order of the court as overruled its demurrers 1, 4, 5, 6, 10, and 11.
On November 29, 1950, the plaintiff offered two amendments to her petition, in one of which she designated her original petition as count 1 and in the other she added a second count. Upon these amendments, the court entered the following order: "Amendments allowed subject to demurrer," on that same day, November 29, 1950.
It is recited in the bill of exceptions and certified by the trial court, "that counsel for the plaintiff notified counsel for the defendant on December 6, 1950, that he was going to re-offer his amendments on December 7, 1950, which had theretofore been allowed by the court on November 29, 1950, and that he would ask orders re-allowing said amendments and overruling the defendant's demurrers . . that on December 7, 1950, in open court and at the same term, but no jury being present, the same amendments [which had formerly been allowed on November 29, 1950] were again presented to the court and an order entered by the court allowing said amendments subject to demurrer . . " This order, dated December 7, 1950, appears in the record as follows: "The within and foregoing amendment upon further submission in open court is again allowed subject to demurrer." On this same day, December 7, 1950, the court then entered the following order upon defendant's original demurrers filed on November 27, 1950: "After amendments allowed the demurrers of the deft. are overruled." So far as the record shows, there were no exceptions pendente lite filed or any direct exceptions taken to the order of December 7, 1950, in which the trial court overruled the defendant's demurrers. However, on December 18, 1950, the defendant filed a motion to set aside the court's order of December 7, 1950, and to strike the case from the docket upon the following grounds: "(1) . . The amendments referred to in this order [of December 7, 1950] were allowed by this court subject to demurrer on the 29th day of November, 1950. There was not any due notice given by this court to the defendant that the demurrers to plaintiff's petition as amended would be heard, in fact there were no demurrers pending in this court to the petition as amended on the date the above stated order [of December 7, 1950] was entered. The only demurrers pending in this case in this court at that time were the demurrers which were heard by the court and passed upon on the 28th day of November, 1950. (2) Further, upon the ground that the order entered is erroneous, in that paragraph 7 of the defendant's original demurrer has been sustained and the petition dismissed unless the plaintiff amended her petition within ten days to meet the criticism thereof, and the amendments filed on November 29, 1950, are the same amendments, and therefore an order overruling ground 7 of the original demurrer to the petition as amended was an erroneous order, and this court should set aside judgment overruling said demurrer. (3) This defendant further moves the court to strike this case from the docket for the reason that the amendment filed did not meet the criticisms of the demurrer, and under the order of this court passed on the 28th day of November, 1950, the petition stood dismissed as of that time unless it was amended within ten days to meet the criticisms of said demurrer, and the ten days now having elapsed, the petition is dismissed, and should be stricken from the docket." The court overruled this motion and error is assigned upon such judgment in the direct bill of exceptions.
On December 12, 1950, the defendant filed general and special demurrers to counts 1 and 2 of the petition as amended, and on December 13 added certain special demurrers to counts 1 and 2 of the petition as amended. No ruling was made on these demurrers filed on each of these two days.
On December 18, 1950, the plaintiff amended counts 1 and 2 of her petition as amended, and the amendment was allowed subject to demurrer.
On December 18, 1950, the defendant renewed its general and special demurrers of December 12 and 13 to the petition as finally amended, as to both counts 1 and 2, and moved that the petition as finally amended be dismissed. On that same day the court entered the following order: "After hearing argument of counsel in this case, each and every special and general demurrer to petition as amended is overruled." The defendant assigned error upon this judgment overruling its demurrers in the bill of exceptions.
In order to determine whether or not the court erred in overruling the defendant's demurrers to the petition as finally amended it will be necessary to consider the allegations of the original petition together with the allegations of the amendments, filed on November 29, and December 7, which were the same, and the allegations of the amendments filed on December 18. In an effort to give at once a clear picture of the petition as finally amended the allegations of the amendments of November 29-December 7 will be placed in italics, and the allegations of the amendments of December 18 will be placed in brackets, so that the petition as finally amended appears in the condition in which it was finally considered by the trial court.
"On July 20, 1950, plaintiff's husband Carl C. Hughes, was killed in the operation of a train of the defendant as hereinafter alleged, leaving surviving him this plaintiff, his widow, and two children of the plaintiff and the said Carl C. Hughes, to wit: John C., age 8 years; and Winston, age 7 years. (4) Said homicide occurred upon the tracks of the defendant railroad where they run immediately west of the plant of the Crown Cotton Mills in the City of Dalton, Georgia, and immediately east of U.S. Highway 41 at a point where a path, leading from said highway across said railroad to the property of the Crown Cotton Mills, is located. Said path is well defined and has been in use by the general public as a foot path in passing from the west side of said railroad to the property of the Crown Cotton Mills for a great many years and for more than 20 years. Said use was with the knowledge of the defendant railroad, its officers, agents, and employees [and was particularly within the knowledge of the defendant railroad's engineer and fireman operating its engine and train which killed plaintiff's said husband. Said use was within the knowledge of all of the officers, agents and employees of said defendant.] People frequently and many times daily and at night used said foot path in passing from U.S. Highway No. 41 to the property of the Crown Cotton Mills and this use had been continual and uninterrupted and with the knowledge of said defendant, its officers, agents and employees for a great many years, and for more than 20 years. (5) On the morning of July 20, 1950, at 3:30 o'clock, a. m., or approximately that hour, the said Carl C. Hughes left the home of his brother on the west side of said railroad for the purpose of crossing said railroad to the plant of the Crown Cotton Mills where another brother was employed where it was his intention to said his brother in the performance of his duties as an employee of the Crown Cotton Mills. Petitioner does not know and is unable to allege the exact time at which the said Carl C. Hughes entered upon the foot path hereinbefore described for the purposes aforesaid but such entrance was between the hours of 3:30 a. m. and 4:30 a. m. on the morning of July 20, 1950. (6) In entering upon said railroad track over said foot path, the said Carl C. Hughes either fell thereon and was rendered unconscious or sustained some sort of physical collapse as a result of which he fell upon said track, his head striking and resting upon the ends of the crossties on the west side of said track at the point where said foot path crosses said track from the west side thereof and he was lying in this posture and in a helpless condition with his head on the ends of said crossties at the time a freight train of the defendant approached from the north at approximately 4:30 o'clock, a. m., on the morning of July 20, 1950. The said Carl C. Hughes had partially recovered consciousness immediately prior to the approach of said train and was gradually emerging from a state of coma when stricken by said train, from which comatose conditions he might have been aroused by any loud and unusual noise such as the blowing of a locomotive whistle or the ringing of a bell on the engine of a locomotive. (7) The railroad track north of said foot path along which said train was approaching was straight for a distance of 1,585 feet and the engineer and fireman in charge of the locomotive drawing said freight train could have seen the said Carl C. Hughes lying in the described precarious and helpless condition on said railroad for at least said distance. (8) The engineer engaged in the operation of said locomotive did see the said Carl C. Hughes lying in said position and condition on said railroad line for said distance of 1,585, or in the exercise of ordinary care could have seen him. (9) It was the duty of said engineer and fireman on said locomotive to keep a constant lookout along the track in the direction in which the locomotive and train was approaching said foot path, for the purpose of discovering the possible presence of human beings thereon. (10) The engineer in charge of said locomotive and train of cars was operating the same at a high and dangerous rate of speed, to wit: 60 miles per hour. Said train was within the corporate limits of the City of Dalton, a city of approximately 20,000 people. (11) There was in force and effect in the City of Dalton on said July 20, 1950, the following valid ordinance, to wit: `539. It shall be unlawful to operate a train in the city limits of Dalton at a greater speed than 20 miles per hour and the train must be kept under control so as to be stopped at any public crossing in said city.' (12) Said engineer in the operation of said locomotive and train of cars immediately preceding said homicide did not blow the whistle of his locomotive, ring the bell thereof, or otherwise sound an alarm in an effort to attract the attention of plaintiff's husband and to rouse him so that he might if possible remove himself from position of peril. (13) The said engineer in the operation of said locomotive and train of cars did not immediately apply the brakes when he discovered, or in the exercise of ordinary care should have discovered, the presence of plaintiff's husband in said position of peril. If said train had been operated at a reasonable rate of speed, to wit: 20 miles per hour, or even while being operated at the rate of speed of 60 miles per hour, it could have been brought to a stop after the engineer had discovered, or in the exercise of ordinary care could have discovered, the presence of plaintiff's husband on the track in his position of peril. The engineer continued to operate his locomotive and train of cars without diminishing speed for some considerable distance, the exact distance being to plaintiff unknown, after he saw or could have seen plaintiff's husband on the track in his position of peril. When said engineer finally applied the brakes on his locomotive and train it was too late to avoid striking plaintiff's husband and the train was being operated at such a rate of speed that it could not then be brought to a stop until after it had struck plaintiff's husband on said foot path and the locomotive had proceeded a distance of 755 feet south of said foot path. (14) Said engine struck plaintiff's husband in passing over said foot path, fracturing his skull, on account of which injury plaintiff's husband died within a short time thereafter on the same day. . . (16) Plaintiff alleges that the defendant and its employees in charge of its said locomotive and train of cars were negligent in the following particulars: A. In failing to toll the bell of the locomotive as it approached said foot path crossing or to otherwise signal the approach of said locomotive and train to said crossing. B. In operating said locomotive and train at a rate of speed in excess of 20 miles per hour in violation of the ordinance of the City of Dalton hereinbefore quoted. C. In operating said locomotive and train at a rate of speed greater than was reasonable and safe under the circumstances, which rate of speed would not have been [in] excess of 20 miles per hour. D. In failing to anticipate the presence of a human being on the foot-path crossing at the time and place of said homicide, and in failing to take proper precautions not to injure or kill such a person. E. In failing to reduce the speed of the train as it approached the foot-path crossing and after coming within plain view thereof. F. In failing to apply the brakes of said locomotive and train of cars after the presence of plaintiff's husband on said track in said foot path was apparent and known to defendant's servants and employees operating said train, or in the exercise of ordinary care should have been discovered by them. G. In failing to blow the whistle or otherwise undertaking to sound an alarm which might have aroused plaintiff's husband after his presence in said position of peril was apparent or in the exercise of ordinary care should have been discovered. H. In failing to apply the brakes after the presence of plaintiff's husband in said position of peril was apparent, or in the exercise of ordinary care could have been discovered. 17. Plaintiff alleges that the death of her husband resulted from the detailed acts of negligence on the part of the defendant and its employees and that her husband was not lacking in ordinary care for his own safety nor could he have by the exercise of ordinary care for his own safety have avoided his injury and death."
By the second of the two amendments, offered on November 29-December 7, the original petition, as amended by the first of these two amendments, was designated count 2. Count 2 is identical in all respects with count 1 with the exception that count 2 contains no allegations of implied knowledge of the presence of the plaintiff's husband on the track, but count 2 charges the defendant's employees with actual knowledge of his presence.
1. The exceptions pendente lite to the overruling of the defendant's special demurrers to the original petition on November 28, 1950, though specified in the final bill of exceptions, are not argued or generally insisted upon in the briefs of counsel for the defendant and are treated as abandoned. Code § 6-1308, and numerous cases cited under catchword, "Abandonment."
2. The judgment of the trial court which was entered on November 28, 1950, in which it overruled certain special demurrers, sustained certain special demurrers, and allowed the plaintiff ten days (or until December 9, 1950) within which to amend to meet the criticisms of the demurrers, was a valid judgment; and, had the plaintiff permitted the ten-day period of "indulgence" or "grace" to elapse without filing and having such amendments allowed, the petition would have been automatically dismissed. Hayes v. Simpson, 83 Ga. App. 22 ( 62 S.E.2d 441); Gamble v. Gamble, 193 Ga. 591, 595 ( 19 S.E.2d 276); Clark v. Ganson, 144 Ga. 544 ( 87 S.E. 670); Speer v. Alexander, 149 Ga. 765 ( 102 S.E. 150); Humphries v. Morris, 179 Ga. 55 ( 175 S.E. 242); Smith v. Atlanta Gas-Light Co., 181 Ga. 479 ( 182 S.E. 603); Howell v. Fulton Bag Cotton Mills, 188 Ga. 488 ( 4 S.E.2d 181). But, be that as it may, in the present case the plaintiff on November 29, 1950, offered two amendments which the court allowed subject to demurrer; and, then, still during the same term and within the ten-day period of grace, before any ruling had been made upon the sufficiency of these two amendments to meet the criticisms of the defendant's demurrers, which had been sustained on November 28, 1950, counsel for the plaintiff, according to the certificate of the trial court, notified counsel for the defendant on December 6, 1950, that on December 7, 1950, he would reoffer the two amendments which had been offered and allowed subject to demurrer on November 29, 1950, and that he would at that time request orders reallowing those amendments and overruling the defendant's demurrers. On that date, December 7, 1950, according to the certificate of the trial court, the two amendments were reoffered and reallowed subject to demurrer, and the defendant's demurrers, which had been sustained on November 28, 1950, were overruled, all done "in open court . . at the same term, but no jury being present," according to the certificate of the trial court.
The effect of the rulings on December 7, 1950, was this: The reallowance of the amendments subject to demurrer, as was true of their first allowance subject to demurrer, ipso facto opened the question of whether such amendments met the criticisms of the defendant's special demurrers, which had been sustained on November 28, 1950. See Trust Company of Georgia v. Mobley, 40 Ga. App. 468, 473 ( 150 S.E. 169); and citations. The subsequent order on that date, December 7, 1950, overruling the defendant's demurrers, superseded the earlier order of November 28, 1950, and this later order adjudicated that the amendments met the criticisms of the demurrers which had been sustained on November 28, 1950. The defendant did not demur to the amendments when offered or reoffered or at the time of the hearing on their sufficiency, and the court's order overruling the demurrers necessarily meant that the court was overruling the demurrers which he had previously sustained. In other words, the later order was, under the circumstances, a revocation of the earlier order, which was, during the same term, within the court's power; see McCandless v. Conley, 115 Ga. 48, 50 ( 41 S.E. 256), where it is said, "`The authorities all hold that a court has plenary control of its judgments, orders, and decrees during the term at which they are rendered, and may amend, correct, modify, or supplement them for cause appearing, or may, to promote justice, revise, supersede, revoke, or vacate them, as may in its discretion seem necessary.' 1 Black, Judg., § 153." And, under the circumstances, counsel for the defendants having had notice of the proposed proceedings, an express order of revocation of the earlier order was unnecessary and would have been superfluous.
3. The defendant did not preserve any exceptions, either by exceptions pendente lite or in the bill of exceptions, to the court's ruling that the amendments had met the criticisms of the demurrers which had been sustained previously; and right or wrong, that ruling, on December 7, 1950, established as the law of the case that the amendments were sufficient.
4. The defendant's motion to set aside the judgment of December 7, 1950, overruling the defendant's demurrers, which has been dealt with above, and to strike the case from the docket, on the ground that the amendments did not meet the criticisms of the demurrers was not meritorious, and the trial court did not err in overruling it. "When a judgment has been rendered, either party may move in arrest thereof, or to set it aside for any defect not amendable which appears on the face of the record or pleadings." Code, § 110-702. No such defect appears on the face of the record or pleadings with reference to the court's ruling of December 7, 1950, upon the sufficiency of the amendments to meet the demurrers. As has been shown above, the defendant's counsel had notice of the proposed proceedings of December 7, 1950, the court was empowered to proceed as it did, and having established as the law of the case that the amendments met the demurrers, to which no exception was taken, the order of December 7, 1950, was entirely regular. See, in this connection, Mell v. McNulty, 185 Ga. 343 ( 195 S.E. 181).
5. Assuming for the sake of argument that after the hearing on demurrers on December 7, 1950, of which the defendant had notice, that the special demurrers filed on December 12, 13, and 18, 1950, were within time (see Code, Ann. Supp., §§ 81-301, 81-1001, 81-1002; Southern Cotton Oil Co. v. Raines, 171 Ga. 154, 156, 155 S.E. 484, and citations), and we do not here express an opinion on that point, it is a well-established rule that, while an amendment may open the pleadings to demurrer anew, it does not open them to new rulings upon the identical questions previously adjudicated. General Tire Rubber Co. v. Brown Tire Co., 46 Ga. App. 548 ( 168 S.E. 75), and citations. The special demurrers filed on December 12, 13, and 18, were essentially upon the same grounds as those of the special demurrers filed on November 27, and overruled by the court on November 28, and December 7.
6. Coming now to the general demurrers to counts 1 and 2 of the petition, it is, of course, so well known that none will gainsay it, that a general demurrer, going to the whole pleading to which it is addressed, should be overruled if any part thereof is good in substance. Greene v. Kelly, 193 Ga. 675 ( 19 S.E.2d 718); Pardue Medicine Co. v. Pardue, 194 Ga. 516 ( 22 S.E.2d, 143); Napier v. Union Cotton Mills, 93 Ga. 587 ( 20 S.E. 80); May v. Jones, 88 Ga. 308 ( 14 S.E. 552).
After a rather sedulous consideration of the allegations of both counts 1 and 2, we are of the opinion that each sets forth a cause of action.
In Shaw v. Georgia Railroad Co., 127 Ga. 8, 13 ( 55 S.E. 960) it is said: "`Where no permission is given, but there is a habit on the part of individuals or the public of traveling over the track on foot, and nothing is done to prevent it, that does not modify or change the legal rights or obligations of either the public or the company. By such use the public are not tacitly licensed to go upon the track and the consent of the company to the use is not implied; but the fact that they do go there enters into the situation as it is known to the company, and affects the caution and amount of care required in running the trains.' The distinction already drawn [q. v.] between the case at bar and Atlanta Ry. Co. v. Gravitt, [ 106 Ga. 873], supra, was made in the well-considered case of Crawford v. Southern Ry. Co., 106 Ga. 893, where Mr. Justice Fish, after citing numerous authorities, evolved the following rule: `Taking the locality where the train is running and all the surrounding circumstances, if those in control of the movement of the train have no reason to apprehend that there may likely be a human being on the track in front of the engine, they are under no duty to one who may in fact be there, until they have actually discovered that he is there. But, if from the locality or surrounding circumstances, there is reason to apprehend that the track in front of the locomotive may not be clear of human beings, then, it seems to us, it is the duty of the employees of the company to keep a lookout ahead of the train; most assuredly so unless they are performing some duty which prevents their looking out upon the track in the direction in which the train is moving.' This rule is approved in Ashworth v. Southern Railway Co., 116 Ga. 635, and Bullard v. Southern Railway Co., 116 Ga. 644. In Southern Railway Co. v. Chatman, 124 Ga. 1026, Mr. Justice Lumpkin, after reviewing a number of cases, text-books, and other authorities on the duty of a railroad company to a trespasser, states the law thus: `The general rule, that as to a trespasser upon a railway track the duty of observing ordinary care and diligence for his protection does not devolve upon the company's agents in charge of a train until his presence upon the track becomes known to them, does not relieve the company under all circumstances from anticipating the presence of a trespasser upon its track and from taking proper precautions to prevent injury to him. Where the circumstances are such that the employees of the company in charge of one of its trains are bound, on a given occasion, to anticipate that persons may be upon the track at a certain place, they are under a duty to take such precautions to prevent injury to such persons as would meet the requirements of ordinary care and diligence." Whether the employees of a defendant railroad exercised such ordinary care as required by the circumstances is, of course, a question for the jury, and applying these rules to the allegations of counts 1 and 2, the two counts were not subject to general demurrer.
For the foregoing reasons, the judgments of the trial court must be, and are
Affirmed. Gardner and Townsend, JJ., concur.
ON MOTION FOR REHEARING.
MacINTYRE, P. J. The court did not overlook the case of Atlantic Refining Co. v. Peerson, 31 Ga. App. 281 ( 120 S.E. 652). That case is distinguishable from the instant case in that there the court did not revoke its earlier order during the period allowed for amending and had, at the stage when he undertook to do so, already lost jurisdiction of the case.
Rehearing denied. Gardner and Townsend, JJ., concur.