Cook v. Rome Railway & Light Co.

87 S.E. 1096, 17 Ga. App. 665, 1916 Ga. App. LEXIS 844

• Court: Court of Appeals of Georgia
• Decided: February 18, 1916
• Docket: 6781, 6782
• Status: Published

Opinion

Russell, C. J.

1. The court did not err in disallowing the amendment to the petition.

2. A plea that the plaintiff’s cause of action is barred by the statute of limitations is a plea in bar, and not a dilatory plea. The court erred in disallowing the amendment setting up that the plaintiff’s action was barred by the statute of limitations. Savannah, Florida & Western Ry. Co. v. Watson, 86 Ga. 795 (13 S. E. 156).

3. The court erred in directing a verdict.

Judgment reversed on both hills of exceptions.

The proposed amendment to the petition was as follows: “Plaintiff alleges that at the time of said injury aforesaid the defendant had permitted and there was growing upon the defendant’s right of way for a distance of 100 yards between said path and the defendant’s track and on said embankment a row of shrubs and bushes and grass and undergrowth, which cut off the view of petitioner from said motonnan and kept said motorman from seeing petitioner as she walked along in said path on said embankment; that if said trees and shrubs and bushes and growth aforesaid had not been allowed to grow and remain on said right of way of defendant and said embankment, said motorman who had said ear in charge would have and could have seen petitioner as she walked along in said path aforesaid, and would not have run said car into petitioner as aforesaid. Petitioner charges that it’ was negligence in the defendant in permitting said shrubs and bushes and growth to remain on said right of way, and that it was negligence in the defendant in not cutting and removing said shrubs and growth from said right of way.” The amendment was objected to and disallowed on the ground that it was irrelevant.

Eubanks & Mebane, for plaintiff in error. > L. IT. Qovinglon, Dean & Dean, contra.