Yancey v. Southern Railway Co.

Court of Appeals of Georgia

Yancey v. Southern Railway Co.

109 S.E.2d 300, 99 Ga. App. 493, 1959 Ga. App. LEXIS 889

CourtCourt of Appeals of Georgia

DecidedApril 24, 1959

Docket37612

StatusPublished

Cited by6 cases

This text of 109 S.E.2d 300 (Yancey v. Southern Railway Co.) 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.

Bluebook

Yancey v. Southern Railway Co., 109 S.E.2d 300, 99 Ga. App. 493, 1959 Ga. App. LEXIS 889 (Ga. Ct. App. 1959).

Pincite

Opinions

Townsend, Judge.

As a matter of law, the presence of a piece of gravel on a railroad crossing is not negligence and the trial court did not err in sustaining the special grounds of demurrer wherein this matter was alleged as a basis for recovery. The presence of a piece of gravel is alleged elsewhere in the petition and is material on a consideration of the general demurrers in relation to the part it played in the plaintiff’s injuries. In City of East Point v. Mason, 86 Ga. App. 832, 834 (72 S. E. 2d 787) it was stated: “To require municipal corporations to keep sidewalks and streets free from loose gravel is to require the impossible from a standpoint of reasonable possibility both from a manpower and a financial point of view. Further, it does not seem unreasonable for a municipality to permit loose gravel to remain on -streets and sidewalks and it would seem that ordinary travel over streets and sidewalks embraces - travel over streets and sidewalks often covered or partially covered with loose sand or gravel. It is fundamental that a municipality is not an insurer of the safety of its streets and -sidewalks.” In Butler v. Jones, 85 Ga. App. 158, 162 (68 S. E. 2d 173) it was held that where “there is a concrete driveway used by pedestrian patients entering and leaving such premises, and a small stone is permitted to remain on the driveway near a step from the driveway to the clinic, the presence of the small stone creates no dangerous condition, and reasonable care did not require the defendant to prevent or remedy this condition.” See also Central of Georgia Ry. Co. v. Keating, 177 Ga. 345 (4a) (170 S. E. 493). The allegations relating to the presence of the piece of gravel do not constitute action-able negligence on the part of the defendant, and the special demurrer raising this point was properly -sustained.

Code § 94-503 provides in part as follows: “All railroad companies shall keep in good order, at their expense, the [496]*496public roads or private ways established pursuant to law, where crossed by their several roads.” This Code section applies to city streets. Atlantic Coast Line R. Co. v. Donalsonville Grain & Elevator Co., 184 Ga. 291, 293 (191 S. E. 87). Violation thereof is negligence per se. Central of Georgia Ry. Co. v. Dumas, 44 Ga. App. 152 (7) (160 S. E. 814). It was held in Pollard v. Boatwright, 57 Ga. App. 565 (5) (196 S. E. 215), that an allegation that there were holes in the street between the defendant’s tracks three to six inches deep might amount to negligence peí' se, the question being for the jury as to whether Code § 94-503 was violated, and that demurrers to these allegations were properly overruled. It may also be negligence as a matter of fact for a railroad company to maintain such a defective condition at a public crossing as to constitute a dangerous condition for persons lawfully using it. Whether the hole in the crossing described in this petition amounted to such negligence is a jury question. The petition here accordingly sets out a cause of action.

However, Code § 94-504, relating to the duty of the railroad to keep the approaches to the crossing safe as many feet beyond each way as is necessary for a traveler to get on and off the crossing safely, is immaterial to the cause of action alleged by the pleader here, since it is alleged that the place where the defect existed, and where the plaintiff slipped and fell, was on the crossing, not on the approaches thereto. Any failure to keep the approaches safe, therefore, would not be negligence as to the plaintiff in this case, it not being a part of the proximate cause of his injury.

One whose attention is necessarily diverted by reason of present or reasonably to be anticipated dangers is not held with the same degree of strictness to the observance of the ground beneath him as he would be in other circumstances. See City of Borne v. Phillips, 37 Ga. App. 299 (2) (139 S. E. 828); Glover v. City Council of Augusta, 83 Ga. App. 314 (63 S. E. 8d 422). The petition here alleges a number of facts from which, if proved, it would be apparent that the plaintiff in crossing the railroad tracks at the time and place in question, had necessarily to guard against other dangers than the road beneath him. A pedestrian [497]*497stepping on a piece of gravel which in turn causes his foot to go into a hole in an area in which pedestrians are accustomed to walk, the presence of which is the alleged negligence against the defendant, is not necessarily so lacking in ordinary care for his own safety as to bar recovery, and the question is for the jury where facts are alleged from which an opposite conclusion is not plainly and palpably the only conclusion to be reached. See among the sidewalk cases: Idlett v. City of Atlanta, 123 Ga. 821 (51 S. E. 709), Evans v. City of Atlanta, 139 Ga. 443 (77 S. E. 378), Mason v. Frankel, 49 Ga. App. 145 (174 S. E. 546), Coker v. City of Rome, 53 Ga. App. 533 (186 S. E. 585), City of Rome v. Hanson, 57 Ga. App. 222 (194 S. E. 887), City of Rome v. Richardson, 62 Ga. App. 85 (7 S. E. 2d 927), Robertson v. Liggett Drug Co., 81 Ga. App. 850 (60 S. E. 2d 268), Bazemore v. MacDougald Construction Co., 85 Ga. App. 107 (68 S. E. 2d 163). From the allegations of the petition it was the existence of the hole which caused the plaintiff’s injury; nevertheless, the plaintiff, according to the petition, did not blindly step into the hole, but he stumbled due to the presence of a piece of gravel, and for that reason his foot went into the hole and he was injured. The petition presents a jury question on the issue of the plaintiff’s contributory negligence as well as on the alleged negligence of the defendant, and the trial court erred in sustaining the general demurrers and dismissing the petition, but properly sustained the special demurrers wherein the petition predicated the plaintiff’s action on the alleged negligence of the railroad company in maintaining the crossing with a piece of gravel located thereon.

Judgment reversed in part and affirmed in part.

Carlisle, J., concurs. Gardner, P. J., concurs specially.

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Townsend, Judge.

As a matter of law, the presence of a piece of gravel on a railroad crossing is not negligence and the trial court did not err in sustaining the special grounds of demurrer wherein this matter was alleged as a basis for recovery. The presence of a piece of gravel is alleged elsewhere in the petition and is material on a consideration of the general demurrers in relation to the part it played in the plaintiff’s injuries. In City of East Point v. Mason, 86 Ga. App. 832, 834 (72 S. E. 2d 787) it was stated: “To require municipal corporations to keep sidewalks and streets free from loose gravel is to require the impossible from a standpoint of reasonable possibility both from a manpower and a financial point of view. Further, it does not seem unreasonable for a municipality to permit loose gravel to remain on -streets and sidewalks and it would seem that ordinary travel over streets and sidewalks embraces - travel over streets and sidewalks often covered or partially covered with loose sand or gravel. It is fundamental that a municipality is not an insurer of the safety of its streets and -sidewalks.” In Butler v. Jones, 85 Ga. App. 158, 162 (68 S. E. 2d 173) it was held that where “there is a concrete driveway used by pedestrian patients entering and leaving such premises, and a small stone is permitted to remain on the driveway near a step from the driveway to the clinic, the presence of the small stone creates no dangerous condition, and reasonable care did not require the defendant to prevent or remedy this condition.” See also Central of Georgia Ry. Co. v. Keating, 177 Ga. 345 (4a) (170 S. E. 493). The allegations relating to the presence of the piece of gravel do not constitute action-able negligence on the part of the defendant, and the special demurrer raising this point was properly -sustained.

Code § 94-503 provides in part as follows: “All railroad companies shall keep in good order, at their expense, the [496]*496public roads or private ways established pursuant to law, where crossed by their several roads.” This Code section applies to city streets. Atlantic Coast Line R. Co. v. Donalsonville Grain & Elevator Co., 184 Ga. 291, 293 (191 S. E. 87). Violation thereof is negligence per se. Central of Georgia Ry. Co. v. Dumas, 44 Ga. App. 152 (7) (160 S. E. 814). It was held in Pollard v. Boatwright, 57 Ga. App. 565 (5) (196 S. E. 215), that an allegation that there were holes in the street between the defendant’s tracks three to six inches deep might amount to negligence peí' se, the question being for the jury as to whether Code § 94-503 was violated, and that demurrers to these allegations were properly overruled. It may also be negligence as a matter of fact for a railroad company to maintain such a defective condition at a public crossing as to constitute a dangerous condition for persons lawfully using it. Whether the hole in the crossing described in this petition amounted to such negligence is a jury question. The petition here accordingly sets out a cause of action.

However, Code § 94-504, relating to the duty of the railroad to keep the approaches to the crossing safe as many feet beyond each way as is necessary for a traveler to get on and off the crossing safely, is immaterial to the cause of action alleged by the pleader here, since it is alleged that the place where the defect existed, and where the plaintiff slipped and fell, was on the crossing, not on the approaches thereto. Any failure to keep the approaches safe, therefore, would not be negligence as to the plaintiff in this case, it not being a part of the proximate cause of his injury.

One whose attention is necessarily diverted by reason of present or reasonably to be anticipated dangers is not held with the same degree of strictness to the observance of the ground beneath him as he would be in other circumstances. See City of Borne v. Phillips, 37 Ga. App. 299 (2) (139 S. E. 828); Glover v. City Council of Augusta, 83 Ga. App. 314 (63 S. E. 8d 422). The petition here alleges a number of facts from which, if proved, it would be apparent that the plaintiff in crossing the railroad tracks at the time and place in question, had necessarily to guard against other dangers than the road beneath him. A pedestrian [497]*497stepping on a piece of gravel which in turn causes his foot to go into a hole in an area in which pedestrians are accustomed to walk, the presence of which is the alleged negligence against the defendant, is not necessarily so lacking in ordinary care for his own safety as to bar recovery, and the question is for the jury where facts are alleged from which an opposite conclusion is not plainly and palpably the only conclusion to be reached. See among the sidewalk cases: Idlett v. City of Atlanta, 123 Ga. 821 (51 S. E. 709), Evans v. City of Atlanta, 139 Ga. 443 (77 S. E. 378), Mason v. Frankel, 49 Ga. App. 145 (174 S. E. 546), Coker v. City of Rome, 53 Ga. App. 533 (186 S. E. 585), City of Rome v. Hanson, 57 Ga. App. 222 (194 S. E. 887), City of Rome v. Richardson, 62 Ga. App. 85 (7 S. E. 2d 927), Robertson v. Liggett Drug Co., 81 Ga. App. 850 (60 S. E. 2d 268), Bazemore v. MacDougald Construction Co., 85 Ga. App. 107 (68 S. E. 2d 163). From the allegations of the petition it was the existence of the hole which caused the plaintiff’s injury; nevertheless, the plaintiff, according to the petition, did not blindly step into the hole, but he stumbled due to the presence of a piece of gravel, and for that reason his foot went into the hole and he was injured. The petition presents a jury question on the issue of the plaintiff’s contributory negligence as well as on the alleged negligence of the defendant, and the trial court erred in sustaining the general demurrers and dismissing the petition, but properly sustained the special demurrers wherein the petition predicated the plaintiff’s action on the alleged negligence of the railroad company in maintaining the crossing with a piece of gravel located thereon.

Judgment reversed in part and affirmed in part.

Carlisle, J., concurs. Gardner, P. J., concurs specially.

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109 S.E.2d 300, 99 Ga. App. 493, 1959 Ga. App. LEXIS 889, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yancey-v-southern-railway-co-gactapp-1959.

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