Powell v. Anderson

193 S.E. 450, 56 Ga. App. 592, 1937 Ga. App. LEXIS 173

Opinion

Broyles, C. J.

1. “The strictness of pleading necessary in suits in the superior and city courts is not required in justices’ courts. Nevertheless, where a' suit is brought in a justice’s court against a railroad company for the killing of live stock, it is essential that the plaintiff should, at least in general terms, allege that the killing was the result of the negligence of the defendant company. A failure to make such allegation will subject the summons to dismissal, in the absence of an amendment, upon a1 demurrer pointing out this defect. The presumption of negligence which the law raises against a railroad company is a rule of evidence, and not of pleading', and is applicable as such to all suits br.ought against railroad companies in the courts of this State for damage sustained by the running of their engines, cars, or other machinery.” South Georgia Railway Co. v. Atkins, 13 Ga. App. 416 (79 S. E. 226), and cit.

2. Applying the foregoing ruling to the facts of the instant case, the trial magistrate erred in overruling the demurrer to the summons a'nd the account attached thereto; and that error rendered the further proceedings nugatory. It follows that the judge of the superior court erred in overruling the certiorari.

Judgment reversed.

MacIntyre and Guerry, JJ., concur.