Seaboard Air Line Railroad v. Hawkins

Court of Appeals of Georgia

Seaboard Air Line Railroad v. Hawkins

161 S.E.2d 886, 117 Ga. App. 797, 1968 Ga. App. LEXIS 1239

CourtCourt of Appeals of Georgia

DecidedMay 21, 1968

Docket43401, 43402

StatusPublished

Cited by6 cases

This text of 161 S.E.2d 886 (Seaboard Air Line Railroad v. Hawkins) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Seaboard Air Line Railroad v. Hawkins, 161 S.E.2d 886, 117 Ga. App. 797, 1968 Ga. App. LEXIS 1239 (Ga. Ct. App. 1968).

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Opinions

Jordan, Presiding Judge.

In these companion cases the defendant railroad company appeals from rulings of the trial court allowing the two plaintiffs, a wife and her husband, to maintain actions against the company based on a grade crossing collision between a vehicle operated by the wife and the defendant’s train. Held:

1. Where a plaintiff elects to amend within the time specified in an order sustaining general and special demurrers and providing for automatic dismissal upon a failure to amend within the time specified, “he is entitled to have his entire petition as amended considered on renewed and additional demurrers as to whether a cause of action is then alleged.” Peacock Constr. Co. v. Chambers, 223 Ga. 515, 518 (156 SE2d 348). Accordingly, the trial court in the present cases, in recognition of the rules in effect before the Civil Practice Act, did not err in overruling the motions for orders suggesting automatic dismissal of the plaintiffs’ petitions.

2. While the trial judge expressly predicated his rulings on the above motions on the rules in effect before the Civil Practice Act, as was proper, the motions being directed to the legal effect of pleadings and orders preceding the effective date of the Act, he expressly overruled the renewed and additional demurrers to the amended petition under the new rules of the Civil Practice Act. Absent any affirmative determination on his part (under Code Ann. § 81A-186) that it would not be feasible or would work an injustice to apply the new procedure, his action in considering the new procedure applicable was proper.

3. The defendant urges before this court that the general demurrers be considered under the new procedure as motions to dismiss for failure to state a claim, and “does not insist upon the renewed and additional special demurrers.” Under the Civil Practice Act, aside from venue, the plaintiff’s complaint must contain “(1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled.” Code Ann. § 81A-108 (a). All pleadings are to be construed to do substantial justice. Code Ann. § 81A-108 (f). The petitions in the present cases disclose a [798]*798collision at a grade crossing between a train operated by the defendant and a Chevrolet sedan operated by the wife. Allegedly, the wife stopped the vehicle at the crossing in obedience to a stop sign, then proceeded to within about five feet of the crossing. Seeing the approaching train and believing collision imminent, she tried to leave the vehicle. Before she cleared herself completely the train struck the vehicle and as a result of this collision she was knocked down, causing her alleged personal injuries, and affording the basis of her claims and that of her husband for medical expenses and loss of services. Various specific acts of negligence are alleged as the cause, such as allowing conditions at the crossing which obscured vision, excessive speed of the train under existing conditions, failure to sound a whistle, and failure to apply brakes to the train. The complaints clearly indicate claims attributable to the alleged negligence of the defendant, and numerous decisions under the federal rules affording the basis for the new procedure in this State are to the effect that a complaint should not be dismissed unless it affirmatively appears that the plaintiff could not possibly be entitled to relief under any statement of facts which could be proved in support of the allegations. Treating the general demurrers to the petitions as appropriate motions under the new procedure, the trial judge did not err in overruling such demurrers.

Argued February 7, 1968 Decided May 21, 1968. Troutman, Sams, Schroder & Lockerman, Allen E. Locker-man, Robert L. Pennington, William H. Schroder, Jr., for appellant. Harrison, Martin & Childs, John S. Harrison, for appellees.

Judgment affirmed.

Deen, J., concurs. Pannell, J., concurs specially.

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Jordan, Presiding Judge.

In these companion cases the defendant railroad company appeals from rulings of the trial court allowing the two plaintiffs, a wife and her husband, to maintain actions against the company based on a grade crossing collision between a vehicle operated by the wife and the defendant’s train. Held:

1. Where a plaintiff elects to amend within the time specified in an order sustaining general and special demurrers and providing for automatic dismissal upon a failure to amend within the time specified, “he is entitled to have his entire petition as amended considered on renewed and additional demurrers as to whether a cause of action is then alleged.” Peacock Constr. Co. v. Chambers, 223 Ga. 515, 518 (156 SE2d 348). Accordingly, the trial court in the present cases, in recognition of the rules in effect before the Civil Practice Act, did not err in overruling the motions for orders suggesting automatic dismissal of the plaintiffs’ petitions.

2. While the trial judge expressly predicated his rulings on the above motions on the rules in effect before the Civil Practice Act, as was proper, the motions being directed to the legal effect of pleadings and orders preceding the effective date of the Act, he expressly overruled the renewed and additional demurrers to the amended petition under the new rules of the Civil Practice Act. Absent any affirmative determination on his part (under Code Ann. § 81A-186) that it would not be feasible or would work an injustice to apply the new procedure, his action in considering the new procedure applicable was proper.

3. The defendant urges before this court that the general demurrers be considered under the new procedure as motions to dismiss for failure to state a claim, and “does not insist upon the renewed and additional special demurrers.” Under the Civil Practice Act, aside from venue, the plaintiff’s complaint must contain “(1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled.” Code Ann. § 81A-108 (a). All pleadings are to be construed to do substantial justice. Code Ann. § 81A-108 (f). The petitions in the present cases disclose a [798]*798collision at a grade crossing between a train operated by the defendant and a Chevrolet sedan operated by the wife. Allegedly, the wife stopped the vehicle at the crossing in obedience to a stop sign, then proceeded to within about five feet of the crossing. Seeing the approaching train and believing collision imminent, she tried to leave the vehicle. Before she cleared herself completely the train struck the vehicle and as a result of this collision she was knocked down, causing her alleged personal injuries, and affording the basis of her claims and that of her husband for medical expenses and loss of services. Various specific acts of negligence are alleged as the cause, such as allowing conditions at the crossing which obscured vision, excessive speed of the train under existing conditions, failure to sound a whistle, and failure to apply brakes to the train. The complaints clearly indicate claims attributable to the alleged negligence of the defendant, and numerous decisions under the federal rules affording the basis for the new procedure in this State are to the effect that a complaint should not be dismissed unless it affirmatively appears that the plaintiff could not possibly be entitled to relief under any statement of facts which could be proved in support of the allegations. Treating the general demurrers to the petitions as appropriate motions under the new procedure, the trial judge did not err in overruling such demurrers.

Argued February 7, 1968 Decided May 21, 1968. Troutman, Sams, Schroder & Lockerman, Allen E. Locker-man, Robert L. Pennington, William H. Schroder, Jr., for appellant. Harrison, Martin & Childs, John S. Harrison, for appellees.

Judgment affirmed.

Deen, J., concurs. Pannell, J., concurs specially.

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161 S.E.2d 886, 117 Ga. App. 797, 1968 Ga. App. LEXIS 1239, Counsel Stack Legal Research, https://law.counselstack.com/opinion/seaboard-air-line-railroad-v-hawkins-gactapp-1968.

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