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SOUTHERN RAILWAY COMPANY v. TURNER et al.
CITY OF ATLANTA v. TURNER et al.
34881.
34882.
Actions for damages. Before Judge Moore. Fulton Superior Court. July 28, August 6, 1953.
QUILLIAN, J.
1, 2. It not appearing from the petition as a matter of law that the plaintiff's husband was negligent, or that his negligence was the sole proximate cause of his death, the general demurrers of both defendants were properly overruled.
3. The demurrers to allegations as to a particular item of damages suffered by the plaintiff's minor daughter on account of the death of the plaintiff's husband were improperly overruled. Such damages do not constitute a separate item of recovery, and are recoverable only as a part of the value of the life of the deceased.
4. The remaining grounds of special demurrer are without merit.
Emma Jane Turner sued the City of Atlanta and Southern Railway Company for damages on account of the death of her husband. The petition as amended, omitting formal parts, alleged substantially the following: On May 22, 1951, the plaintiff's husband was killed as a result of the concurring negligence of the defendants. At about 10:30 a. m. on that date, her husband, Archie Frank Turner, was riding on a truck belonging to his employer, which was being driven by a fellow employee. Said truck was an open-type one, having no roof. The decedent was standing on the rear of the truck holding onto a hoist which extended above the highest point of the truck. It is a common practice of the City of Atlanta for trucks to haul cargoes which extend above the highest point of the truck, and the use of the truck at the time of the occurrence complained of was in the ordinary and usual mode of travel on the streets of the City of Atlanta. Said truck was being driven eastward on Glenn Street in the City of Atlanta approaching the west entrance of an underpass known as the Glenn Street Underpass, over which passed the railroad tracks of Southern Railway Company. The driver of said truck, seeing that the truck and hoist would clear or pass under the viaduct and clear the overhead beams at the west end of the viaduct, assumed that they would also clear at the east end thereof, and proceeded to drive the truck eastward through the underpass. As said truck was proceeding through the underpass, the top of the hoist onto which the plaintiff's husband was holding struck an overhead beam of said underpass, throwing him from the truck, and as a result he received bodily injuries which caused his death on that day. At the time of the occurrence aforesaid, Southern Railway Company owned the Glenn Street Underpass, which it had constructed around 1913 or 1914, and no change had been made in the underpass since its construction. The underpass was located within the City of Atlanta, and Glenn Street is not a State road and has never been designated as a State or State-aid road, and is not a county road. Said underpass was constructed prior to 1927 and the passage of the act approved August 23, 1927 (Ga. L. 1927, p. 299), which act has no application to said underpass. At its west entrance the vertical distance from the underpass beam to the center of the street is 10 feet, 8 1/8 inches, and the vertical distance from said beam to the south curb is 11 feet, 2 inches, and the vertical distance front said beam to the north curb is 11 feet, 3 3/4 inches. The height of the beams overhead decreased at an irregular rate, so that at the east entrance the vertical distances from the overhead beam to the street were 11 feet, 1/4 inch, at the south curb, 10 feet, 5 3/4 inches at the center, and 11 feet, 3 1/4 inches at the north curb. The fact that there was less clearance at the east end than at the west end caused the hoist to strike a beam near the east end. There were no warning signs to indicate the clearance under the underpass. The underpass was 92 feet long; and consisted of concrete beams, running the entire width of the underpass, which were spaced about 2 feet apart. The clearance in the center of the street was 3 1/8 inches less at the east end than it was at the beam midway between the east and west ends of the underpass. Said decrease was irregular and not perceptible to a user of said street. The hoist struck a beam in the eastern half of the underpass near the east end thereof. The truck driver did not know that there was less clearance at the east end than at the west end.
The plaintiff alleged that the defendant Southern Railway Company was negligent in constructing and maintaining the underpass in such a manner that it was lower at the east end than at the west end, which constituted a dangerous condition in violation of Code 94-503; in failing to warn travelers on the street by means of signs or notices of the said dangerous condition; in failing to erect signs or notices to inform travelers as to the height or clearance of said underpass; and in failing to correct said dangerous condition. The defendant City of Atlanta was alleged to have been negligent in failing to notify the railroad that the underpass was in a dangerous condition, and, in the event the said railway company failed or refused to remedy the defect, then in failing to make the necessary repairs itself; and in permitting the said dangerous condition to exist without any warning signs or notices of said condition to travelers. It was alleged that the alleged acts of negligence were the proximate cause of the plaintiff's husband's death.
Both defendants filed general and special demurrers to the petition, all of which the trial court overruled, and each defendant filed a bill of exceptions to that ruling.
1. The trial court did not err in overruling the general demurrer of the defendant Southern Railway Company. Under the allegations of the petition, it is a question for a jury to decide whether or not the railroad company was negligent. Georgia Railroad & Bkg. Co. v. Sewell, 57 Ga. App. 674 (196 S. E. 140). The petition does not show as a matter of law that the railroad company was not negligent or as a matter of law that the deceased's negligence, if any, or that the negligence of the driver of the truck, if any, was the sole proximate cause of the death of the plaintiff's husband.
2. The general demurrer of the City of Atlanta was properly overruled. It is a jury question under the allegations of the petition whether the plaintiff's husband was traveling in an unusual manner. The city is bound to keep its streets reasonably safe for persons using them in the usual way, and this duty extends to such obstructions and hazards as actually impede the normal and reasonable use of the streets, whether such obstructions occur in the surface of the street or at some point above the surface. See Mayor &c. of Savannah v. Harvey, 87 Ga. App. 122 (73 S. E. 2d 260).
3. The trial court erred in overruling the special demurrers of the defendants to paragraph 24 of the petition. This paragraph alleged that, because of the negligence of the defendants, the plaintiff's minor child was deprived of the guidance and assistance of her father in the furtherance of her education and training, which services were reasonably worth $3,000 per year. Such damages are not recoverable, as such, separately from the value of the life of the deceased. Such facts as were alleged in that paragraph may be considered only on the question of the value of the life of the deceased, but cannot be recovered as a separate item of damages.
4. The remaining grounds of special demurrer interposed by the defendant railroad are without merit. Factitious demands by special demurrer are not favored, and all of such remaining grounds either call for additional facts, or seek to compel the plaintiff to plead matter more appropriate to a defense of the action than to its prosecution.
Judgments in both cases affirmed in part and reversed in part. Felton, C. J., and Nichols, J., concur.
Scott Hogg, John E. Feagin, Clinton Morgan, Nall, Sterne & Miller (Case No. 34881), Scott Hogg, Clinton Morgan, Nall, Sterne & Miller, Ferdinand Buckley, Marshall, Greene, Baird & Neely (Case No. 34882), contra.
Edgar A. Neely, Jr., Marshall, Greene, Baird & Neely (Case No. 34881), J. C. Savage, J. C. Murphy, J. M. B. Bloodworth, John E. Feagin, Henry L. Bowden (Case No. 34882), for plaintiffs in error.
DECIDED FEBRUARY 25, 1954 -- REHEARING DENIED MARCH 17, 1954.
Saturday May 23 03:28 EDT


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