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LEDBETTER-JOHNSON COMPANY v. THACKER.
40233.
Action for damages. Floyd Superior Court. Before Judge Scoggin.
FELTON, Chief Judge.
In a suit for damages for personal injuries caused by the defendant contractor's alleged negligence in failing to place any warning devices along a State-aid road in the process of construction, an allegation that "the defendant was in complete control and charge of the construction of the said road at the point of the plaintiff's injuries," construed most strongly against the plaintiff, implied that the portion of the roadway preceding that point was under the control of the State Highway Board, in which is vested exclusive authority to erect warning signs; therefore, it was error to overrule the general and special demurrers to the petition.
Marvin T. Thacker brought suit against Ledbetter-Johnson Company to recover damages for personal injuries sustained as a result of the defendant's alleged negligence. The petition as twice amended alleged substantially as follows: that on August 22, 1961, the defendant contractor was engaged in the construction of a road and highway in DeKalb County known as the Southeast Expressway and as Federal Aid Project I-403-2 (5), at its intersection with Highway 278, said location being within one mile of the Rockdale County line and approximately 8 miles east of Decatur; that the road had east and west bound traffic lanes and was approximately 28 feet wide at the point in question; that at this time and place the defendant had temporarily ceased work at this point on the highway and had placed a large bank of dirt approximately 150 feet from the end of the concrete construction for the purpose of detouring traffic into a left hand channel of another highway; that the defendant had placed no signs or other warning devices on said road to indicate to the persons traveling said road that the dirt barricade obstruction had been erected across the road; that there was a dip in the road at the end of the concrete portion thereof; that between the end of the concrete and the barricade, the road was pitted with large holes and otherwise in a bad state of repair which made the control of an automobile thereon difficult and hazardous; that the plaintiff was a passenger in an automobile traveling in an easterly direction on said road at 8 p.m., it then being dark, at the legal rate of speed of 50 m.p.h., when, without warning, the concrete portion ended and the automobile ran onto the dirt portion, the alleged condition thereof causing the driver to be unable to stop the automobile before it collided with the barricade, causing the plaintiff's alleged injuries; that at the time and place aforesaid the defendant was in complete control and charge of the construction of the said road at the point of the plaintiff's injuries; that the plaintiff did in no wise contribute to his injuries; that the negligence of the defendant, which was the direct proximate cause of the alleged injuries, consisted of the following particulars:
(a) In failing to have placed and installed signs, flares or other signaling devices indicating the change in the character of the road, i.e., that the paved portion of said road ended;
(b) In failing to have proper signs, flares or other signaling devices to indicate to the persons using said road that there was a dirt obstruction approximately 4 feet high across said road;
(c) In failing to have any watchman to signal the hazardous condition existing at the end of the paved portion of said road;
(d) In failing to take the necessary precautions to warn the public using said road of the hazards existing at the paved portion of the road;
(e) In failing to exercise ordinary diligence in warning the drivers of vehicles using said road of the hazardous conditions then existing.
The petition alleges in part, that "at the time and place aforesaid the defendant was in complete control and charge of the construction of the said road at the point of the plaintiff's injuries." (Emphasis supplied.) According to the allegations of the petition, the plaintiff's injuries were caused by the collision of the automobile with the dirt barricade, therefore the "point of the plaintiff's injuries" was at the barricade. Construing the petition most strongly against the plaintiff, as must be done on general demurrer, the allegation that the defendant was in complete control and charge of the construction of the road at the point of the plaintiff's injuries (the barricade) implies that the defendant was not in control of the road at places other than at the point of the plaintiff's injuries, i.e., the concrete portion and the unpaved, dirt portion adjacent to the barricade. These portions of the road not being under the defendant's control, it must be assumed, again construing the petition most strongly against the pleader, that they were under the control of the State Highway Department. Assuming that the 50 m.p.h. speed of the automobile was lawful at this location, as alleged, any warning sign or device would have had to be placed a considerable distance back from the barricade in order to be effectual, and, as indicated above, this would have been located on a portion of the roadway which, under the allegations, was in the control of the Highway Department. Under the provisions of Code Ann. 95-604, exclusive authority and jurisdiction for the erection and maintenance of warning signs along the highways of this State composing the State-aid system of roads is vested in the State Highway Board. Violation of this statute is made a misdemeanor under Code Ann. 95-9920.
According to the allegations of the petition, therefore, the defendants not only had no duty to erect warning signs along the road but they were prohibited by State law from doing so. It follows that the petition failed to allege either a duty of warning the plaintiff or any negligence in failing to warn him; therefore, the court erred in its judgment overruling the general demurrer to the petition as amended, as well as the special demurrers thereto, which allege that each allegation of negligence fails to set forth facts which show the breach of any duty of the defendant to the plaintiff or constitute actionable negligence on the part of the defendant.
Judgment reversed. Eberhardt and Russell, JJ., concur.
Parker, Clary & Kent, Chastine Parker, Horace T. Clary, contra.
Matthews, Maddox, Walton & Smith, John W. Maddox, for plaintiff in error.
DECIDED SEPTEMBER 10, 1963.
Friday May 22 22:22 EDT


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