Savannah & Atlanta Railway v. Hart

110 S.E. 410, 27 Ga. App. 743, 1921 Ga. App. LEXIS 394

• Court: Court of Appeals of Georgia
• Decided: December 13, 1921
• Docket: 12197
• Status: Published

Opinion

Luke, J.

This was a suit for damages alleged .to have been occasioned by the defective condition of cattle-guards erected by the defendant railway company at the intersection of its tracks and an alleged private road or way. It is conceded in the brief of counsel for the railway company that in such a suit it is immaterial whether the notice to build cattle-guards required by the Civil Code (1910), § 2699, was given where they were voluntarily built by the railroad company without such notice, at a public road, “or private way established pursuant to law.” Hnder this concession and the facts of the ease, the failure of the plaintiff to give the notice referred to was immaterial. The railway company, having voluntarily built the cattle-guards at the alleged private way over the plaintiff’s land, is estopped from now saying that they were not erected at a “private way established pursuant to law. ” Having built the cattle-guards “for the. convenience of the plaintiff” as shown by the defendant’s evidence, it was the duty -of the railway company to build proper and effective ones and to keep them in good repair. The general demurrer to the petition was properly overruled. The court erred in overruling some of the special demurrers to the petition, but these errors, under all the facts of the case, were slight and do not require another trial.

The verdict was authorized by the evidence) and none of the special grounds of the motion for a new trial shows reversible error.

Judgment affirmed.

Broyles, C. J., and Bloodworth, J., concur.