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TRAMMELL v. MATTHEWS; and vice versa.
33631.
33647.
Action for damages; from Whitfield Superior Court-- Judge Paschall. April 4, 1951.
GARDNER, J.
1. The plaintiff's petition as amended set up a cause of action for submission to the jury and the trial court properly overruled the general demurrers interposed thereto.
2. The plaintiff's amendments having met the grounds of special demurrer urged to certain paragraphs of the petition, the court properly overruled these grounds of the demurrer.
3. The court properly struck paragraph 26, and erred in striking paragraph 35 (d) as set forth in the cross-bill.
Mrs. Virginia Elaine Matthews, hereinafter called the plaintiff, filed suit in Whitfield Superior Court against L. W. Trammell, herein after called the defendant, and alleged that the defendant had injured and damaged her in the sum of $75,000; that in December 1948, the defendant operated a construction business under the name of Trammell Construction Company; that the nature of the business carried on by the defendant was that of road and bridge contractor and builder; that on December 9, 1948, the defendant was engaged in the construction of a bridge over Swamp Creek on U. S. Highway 41, known as the Dixie Highway, in said State and county, several miles south of Dalton; that the defendant and his servants had torn out the bridge over this creek and were in the act of building a new bridge at the location of the old bridge; that at the time one or more concrete beams had been installed in the foundation for the new bridge, the top of the beam being about 18 inches below the level of the finished roadbed when completed; that between the south end of the proposed bridge and the nearest beam was an open space of about 12 feet; that no covering had been laid over the beam at the time; that this highway was a heavily traveled public highway at this place; that the defendant had notice of this fact; that on the south of the bridge, around 200 to 300 feet, a paved detour had been established around the bridge, with the detour leaving the highway at a slight angle, with the surface of the detour being dark pavement of a similar appearance to that of the highway; that at the approximate north point of the departure of the detour from the highway, a partial and inadequate road block had been established, blocking a part of the road; that for a distance of several hundred feet north and south of the said open bridge, the highway was straight; that on said December 9, 1948, at about 4:30 a.m. a 1940 Nash automobile approached the bridge from the south with James D. Raymond driving; that Floyd E. Matthews Sr., plaintiff's husband, was riding in this car as a passenger; that the car was being operated at a reasonable speed; that because of the fact that the defendant had not properly marked and blocked the highway south of the bridge, the car was driven into said open bridge space, with the windshield striking the concrete beam about 12 feet north of the south end of the pavement, at the bridge, and the car going through to the ground and water
underneath, injuring the plaintiff's husband from which injuries he died several hours later; that the highway is a heavily traveled through road and was at the time, without any road signs or warnings having been posted by the defendant south of said partial road block, to warn the public that they would be approaching a place of danger, or any warning sign that the bridge on the highway was out at the time; that the road block a short distance south of the open bridge did not completely block the road; that the block was so placed that the car driver could have reasonably assumed that the block was not a warning that the road was completely blocked and the bridge was out or impassable; that no watchman was stationed at the road block to warn the public, including the driver of this car, that the bridge was out; that her husband lived in Missouri and the driver of the car lived in Nebraska and neither was familiar with the road; that it was still dark when the accident took place; that in the exercise of ordinary care, the defendant should have placed lighted signs several hundred feet south of the partial road block, properly lighted, to have properly warned the public, including the driver of the car, that the bridge was out; that in the exercise of ordinary care, the defendant should have placed lighted signs several hundred feet south of said detour, directing the public to take the detour and not to try to continue along the road to where the bridge was out; that prior to said date, the defendant had notice that the road was inadequately marked and blocked to guard against damaging and injuring the traveling public; that the defendant was negligent in the following particulars: In failing to place any marker or sign along the highway at any point within 1000 feet south of the detour, warning plaintiff's husband and the driver of the car of the dangerous condition of the highway because the bridge was torn out; in failing to provide a detour sign at the detour south of the bridge; in not providing a complete road block at the intersection of the highway and detour, preventing the car in which her husband was riding from continuing north along the highway north of the partial block; in not having a watchman stationed at the intersection of the highway and detour south of the bridge; and in placing the partial road block in such manner that it was misleading to a person not familiar with the road in that it conveyed the impression that only that portion of the road was intended to be closed.
The defendant, L. N. Trammell, demurred generally to the petition and moved to dismiss the same as setting forth no cause of action against the defendant.
The defendant demurred specially to various paragraphs of the petition as being conclusions and moved to strike the same.
The plaintiff amended her petition by adding at the end of paragraph 12 thereof that "Said detour leading off the shoulder of the said highway at a sharp descent so as to prevent the lights of a car from disclosing same to the vision of a driver of such car approaching from the south," by adding to the 13th paragraph: "there being sufficient room on the west side of the partial road block for a car to pass around same without leaving the pavement in proceeding north toward the point where the bridge was out"; striking paragraph 14 and adding as paragraph 14 that at a distance of about 200 feet south of the partial road block the highway curved sharply to the east and continued up a steep grade to the top of the hill, and then curved westerly, all of which prevented the driver of the car approaching from the south from seeing the partial road block until within a short distance thereof; and by adding to paragraph 21 that the pavement around the west end of the partial road block gave the appearance of being in use as a bypass by reason of same having been used as an ingress and egress for trucks carrying material to the opening where the bridge was being constructed. The plaintiff again amended her petition by striking paragraph 17 wherein she alleged that the driver of the car was proceeding at a reasonable speed.
The plaintiff amended her petition a third time by adding to paragraph 13 thereof that the space between the west end of the partial road block and the west edge of the pavement was an opening of about 7 feet; by striking paragraph 21 in its entirety and adding as paragraph 21 that said partial road block was so placed that it did not constitute a warning that the road was completely blocked and the bridge was out or impassable, and the pavement around the west end thereof was in use at the time as an ingress and egress for trucks carrying materials to the opening where the bridge was being constructed, with the tire marks thereof on the pavement; by adding to paragraph 29 that the defendant should have placed lighted signs a sufficient distance south of the partial road block to properly warn traffic approaching from the south that the bridge was out; by adding to paragraph 31 that the defendant should have placed lighted signs a sufficient distance south of the detour to warn the public that the bridge was out and to take the detour; by adding to paragraph 33 that the defendant knew or in the exercise of ordinary care should have known that there was a sufficient distance between the west end of the partial road block and the west side of the pavement for cars to pass, and that same was actually in use at that time as an ingress and egress for trucks to carry materials to the opening where the bridge was being constructed; by striking paragraph 35 (e) and adding that the defendant was negligent in placing the partial road block at the intersection of said road and detour and permitting trucks to use the open pavement at the west end of said partial road block as means of ingress and egress to carry materials to the opening where said bridge was being constructed, the trucks leaving track marks on the pavement", and by adding paragraph 35 (f) that the defendant was negligent "In that the defendant failed to have placed properly lighted signs a sufficient distance south of said detour to warn the public that the bridge was out and to take the detour."
These amendments were allowed subject to objection.
On March 27, 1951, the trial judge sustained the special demurrers to paragraphs 13, 21, 26, 29, 31, 33, 35 (d) and 35 (e) and gave to the plaintiff ten days in which to amend to meet the same. The other special demurrers were overruled, with the exception of the special demurrer to paragraph 35 (c) which the court did not rule upon. The trial judge on April 4, 1951 overruled the general demurrers to the plaintiff's petition as amended.
Thereafter, on April 4, 1951, the court passed its order and judgment that paragraph 26 be stricken and that paragraph 35 (d) be stricken, and that the other grounds of special demurrer, which he had sustained, be overruled.
To the judgment striking the two paragraphs above set out, the plaintiff excepted pendente lite and assigns error on such exceptions pendente lite on the cross-bill of exceptions in this court.
To this judgment overruling the general demurrers to the petition, as amended, and to the judgment overruling the grounds of special demurrer urged to the petition, the defendant excepts to this court by direct bill of exceptions.
1. Plaintiff's petition, as amended, was not subject to the grounds of general demurrer urged. It appeared from the petition that the plaintiff's husband sustained injuries, as a result of the alleged negligence of the defendant, from which he died, and that he would not have been so injured had the defendant not been guilty of the negligence charged.
Questions of negligence are ordinarily jury questions and not questions of law for the court. Rome Ry. & Light Co. v. King, 30 Ga. App. 231 (117 S. E. 464). The plaintiff alleged, among other salient acts of negligence, that had the defendant placed proper warnings at the point where the detour went around the place where the bridge was out, the driver of the car in which her husband was riding, would not have passed the detour and gone through the partial road block and then into the place where the bridge was out. This was a question for the jury. The plaintiff alleged that the partial road block was not such as to warn persons that the bridge was out ahead and the road impassable and that it appeared from the truck tire marks there that the same was in use, and there was nothing to prevent the driver of the car in which her husband was a passenger from assuming that he could use the road, as other cars were apparently using the same. It was alleged that had the proper lighted signs and warnings been placed to warn those using the highway at this point of this bridge being out, the injury would have been prevented. The driver of the car was not familiar with this road, not being a native of this part of the country, and neither was the plaintiff's husband. The plaintiff alleged that the condition of the highway and all the attendant facts and circumstances were such that ordinary care required that proper lighted signs and warnings be placed to prevent persons from using this partial road block and so that they could see the detour, which was dark pavement of similar appearance to that of the highway. A jury would be authorized to find that it was negligence under the circumstances for the defendant to have failed to place proper barricades, lighted signs and warnings at this road block and detour and as the highway approached the detour from the south.
In Doby v. W. L. Florence Construction Co., 71 Ga. App. 888 (32 S. E. 2d, 527), this court ruled that "where highway contractors undertake to barricade a public road temporarily for some proper purpose, they should give warning thereof." In the body of the opinion the court said, "Where a highway contractor undertakes to barricade a public road temporarily, for some proper purpose, he should give warning thereof. This rule applies when the contractor is making repairs or improvements, and such temporary obstruction (closing the public road to travel while the repairs are under way) must be of a character, and maintained in such a way as to protect persons traveling along the public road, in an ordinarily prudent manner from injury." Applying this principle to the case at bar, a jury would be authorized, under the petition, as amended, in finding that the defendant contractor failed to give the proper warning to persons approaching this partial road block and detour where the bridge was out and a new one being constructed, and that the plaintiff's injuries resulted from this failure. In State Construction Company v. Johnson, 82 Ga. App. 698 (62 S. E. 2d, 413), this court held to the effect that a contractor constructing a bridge owes a duty to the public to exercise ordinary care to protect the public from injuries arising by reason of said construction. A breach by a road contractor defendant of his duty to erect proper barriers and signs constitutes actionable negligence. See note 7 A. L. R. 1204.
It appeared from the plaintiff's petition, as amended, that the way ahead of the driver of this car was not clear, that it was yet dark, and the road was not straight as one approached this partial road block from the south; that the detour was the same color as the paved road; that the partial road block was not sufficient and adequate to prevent one from assuming that the road could be used, and that neither the plaintiff's husband nor the driver of the car was guilty of such negligence as would bar a recovery by the plaintiff for the death of her husband, who was a passenger in the car. The driver of the car had a right to assume that the road ahead of him was clear. Mathis v. Nelson, 79 Ga. App. 639, 642 (54 S. E. 2d, 710).
The plaintiff's petition, as amended, setting forth facts authorizing submission to a jury, it was not error for the court to overrule the general demurrers thereto interposed by the defendant.
2. The plaintiff's petition, as finally amended, was not subject to the grounds of special demurrer urged by the defendant except as hereinafter noted. The amendments met those grounds of special demurrer which were well taken. The plaintiff is not required to do more than plainly, clearly and distinctly set forth the alleged cause of action, and to clearly and distinctly allege the facts on which his conclusions of law are based, and this the plaintiff did. The plaintiff was not required to go into minute detail as to the facts and to allege her proof. The petition, as amended, sufficiently gave the facts on which the plaintiff's cause was predicated to enable the defendant to properly prepare his defense to the contentions of the plaintiff. The court did not err in overruling the grounds of special demurrer, on which error is assigned by the defendant.
3. The court sustained two of the special demurrers of the defendant and struck paragraphs 26 and 35 (d) of the petition, and the plaintiff excepted pendente lite, assigning error thereon in the cross-bill of exceptions. Paragraph 26 is that "with increasing years and added experience his earning capacity (referring to the plaintiff's husband) should have increased to $300 per month or other large sum." The court did not err in striking this paragraph from the petition, it not appearing how or wherein the earning capacity of the plaintiff's husband should have increased.
It is a jury question under all the facts and circumstances under the petition as to whether it was the duty of the defendant to place a watchman there, if lights, signs and warnings and other surrounding conditions would not have sufficed as a proper warning.
Judgment affirmed on the main bill of exceptions, and the cross-bill of exceptions affirmed in part and reversed in part. MacIntyre, P. J., and Townsend, J., concur.
Isaac C. Adams, C. Ernest McDonald, for defendant.
Hardin & McCamy, for plaintiff.
DECIDED JULY 16, 1951.
Saturday May 23 05:39 EDT


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