Southern Railway Co. v. Howard

70 S.E. 1124, 9 Ga. App. 264, 1911 Ga. App. LEXIS 503

• Court: Court of Appeals of Georgia
• Decided: April 24, 1911
• Docket: 3000
• Status: Published

Opinion

Rowell, J.

Tlie petition alleges, in substance, that the petitioner was an ■employee of a manufacturing company, and that the defendant railroad company maintained a spur-track from its main line to the plant of this manufacturing company, and that the spur-track passed over a canal about 25 feet broad, upon.a.trestle; that the defendant company had for a long number of years maintained on the .trestle a walkway, consisting of two planks laid' in the center of the track, and the public generally, and especially the employees of the manufacturing company, had continuously used the trestle as a foot-bridge, without any protest from the railroad company, but with its implied consent, and with its intention that it should be so used. On a day named, just after dark, the plaintiff, while returning from work, was crossing the trestle, walking along the footpath, when at a point about the center of the • trestle he sustained a fall, through his foot striking against an obstruction in the walkway, which was occasioned by the fact that two ■of the planks came together at a rough and uneven joint, one of the planks being higher than the other and the lower plank having rotted away at the end'. As a result of the fall, he received certain injuries. It is alleged that the defendant knew of this defective condition, and that the plaintiff did not, and that in the exercise of ordinary care he could not have discovered it. Held, that the court did not err in refusing . to dismiss the petition on general demurrer. Burton v. W. & A. R. Co., 98 Ga. 783 (25 S. E. 736) ; Etheredge v. Central of Georgia Ry. Co., 122 Ga. 853 (50 S. E. 1003). Judgment affirmed.

Action for damages; from city court of Biebmond county — Judge W. F. Eve. October 11, 1910.

Joseph B. & Bryan Gumming, for plaintiff in error. Pierce Brothers, contra.