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JAMES v. SMITH et al.
35661.
Action for damages. Before Judge Thomas. Douglas City Court. January 8, 1955.
GARDNER, P.
The court did not err, under the allegations of fact in the petition, in sustaining the demurrer and dismissing the petition.
This case is here as a result of the trial court sustaining a general demurrer by the defendants, H. G. Smith and Coffee County, to the petition of the plaintiff James. We deem it advisable to set out the material parts of the petition, as follows:
"6. The plaintiff shows that the defendant, H. G. Smith, on April 15, 1953, contracted to build two public bridges over the Satilla River in Coffee County, Georgia, on State Highway No. 31 between Douglas, Georgia, and Pearson, Georgia, with the State Highway Department of Georgia. A copy of said contract and bond thereon is hereto attached marked 'Exhibit A' and by reference made a part of this petition. Plaintiff shows that one of the bridges contracted to be built was a permanent concrete bridge being adjacent to the other bridge contracted to be built and immediately east of said other bridge. The other bridge that was contracted to be built was a detour bridge of wood construction being adjacent to the said permanent bridge and being immediately west of said permanent concrete bridge and running parallel with same. The defendant, H. G. Smith, was obligated to construct and maintain said detour bridge as shown on pages 81 and 89 of said contract for the express purpose of properly taking care of traffic until the permanent concrete bridge was completed. The plaintiff shows that the defendant, H. G. Smith, under the supervision, direction and guidance of the inspectors, officials and supervisors of the State Highway Department of Georgia and the County Commissioners of Coffee County, Georgia, and of the employees and supervisors of the County Commissioners of Coffee County, Georgia, built and maintained said detour bridge. Said detour bridge and the approaches and abutments thereto were built by the defendant, H. G. Smith, under the direction and supervision of said officials during the year 1953 which is since 1888 and partly built the said permanent concrete bridge during the year 1953 under said supervisors.
"7. The defendant, H. G. Smith, by himself, his agents, servants and employees did build and maintain said detour bridge and the approaches and abutments thereto in a faulty and negligent manner and condition contrary to the terms of said contract and unsuited for safe public use under the direction and supervision of the supervisors and inspectors of the Highway Department of the State of Georgia and the County Commissioners of Coffee County, Georgia, in the following respects:
"(a) The said H. G. Smith constructed said detour bridge in an unsafe manner for use by the public in that he used as flooring for said bridge wooden boards of uneven width, varying as much as one inch in thickness, which would cause an automobile in traveling over the said bridge to become unbalanced and difficult to control for the reason it would slip, slide and swerve on said bridge, and affected the plaintiff as hereinafter set out in this petition.
"(b) The said H. G. Smith constructed the said detour bridge and maintained same and the approaches and abutments to same in a negligent and faulty manner in that he placed on the immediate north end of said detour bridge and on the approach thereto a slick black tar which would cause an automobile to slip, slide and swerve from one side of the bridge and the approach thereto to the other side and causing the said automobile to become so uncontrollable that the driver could not steer and direct the proper direction of same, and which affected plaintiff as hereinafter set out in this petition.
"(c) The said H. G. Smith constructed and maintained the said detour bridge and the approaches thereto in a negligent and faulty manner in that there was built immediately east and adjacent to the approach to said detour bridge a ten (10) foot approach to the new permanent bridge which was built from red clay. When it rained red slick clay would wash and run off said high ten (10) foot approach onto the approach and abutment of said detour bridge and also on the said detour bridge. Several times before the plaintiff was injured rains had washed red slick clay onto the said bridge and the abutment and approaches to said detour bridge, the said approaches and abutments to said detour bridge being part of same. These facts were known by the defendant, H. G. Smith, and the inspectors and officials of the Highway Department of the State of Georgia and the County Commissioners of Coffee County, Georgia. Immediately before plaintiff was injured as hereinafter set out a heavy rain had come and washed red slick clay and mud on the said detour bridge and on the approach to same off the ten (10) foot approach to the permanent bridge which was well known to said above officials and inspectors, and an auto in running over and on this red slick mud and clay would slip, slide and swerve to the extent that same would become uncontrollable for the driver of same and affected the plaintiff as hereinafter set out in this petition.
"(d) The said H. G. Smith built and maintained said detour bridge and the approaches thereto in a faulty and negligent manner in that he built immediately east of the approach to said detour bridge a high ten (10) foot embankment for the approach for the new permanent concrete bridge. The approach and abutment north of detour bridge is contiguous to and part of said detour bridge. When it rained great currents of water and mud would come off this embankment onto the north approach to the new detour bridge and would wash large holes and washouts on the west side of said approach to said detour bridge. This fact was well known to the defendant, H. G. Smith, the inspectors and officials of the Highway Department of the State of Georgia and to the County Commissioners of Coffee County, Georgia. At the time plaintiff was injured and damaged there were large holes and washouts on the west side of said approach to said detour bridge which fact was known by said defendants, officials and inspectors. Plaintiff shows that the said holes were left unguarded and with no danger signs placed around or about them and that same affected plaintiff as hereinafter set out in this petition.
"8. Plaintiff shows that the said defendant under the inspection of the inspectors of the Highway Department of the State of Georgia built the said detour bridge which was 300 feet long and about 20 feet in width and was built seven feet above the normal flow of water in the Satilla River. The said defendant, H. G. Smith, built and maintained the approaches to said detour bridge under the supervision of the inspectors and engineers of the Highway Department of the State of Georgia. The north abutment and approach to said detour bridge was approximately 250 feet long and had an average height above the normal ground level of about four feet, and without any guardrails on either side of the approach to said detour bridge. Plaintiff shows that the said approach on which he was injured and damaged was an embankment contiguous to wooden part of bridge and necessary in order for vehicles to travel over bridge, and necessary means of access to pass over bridge.
"10. Plaintiff shows that on the 25th day of December, 1953 at 10 o'clock p.m. he was traveling north on Georgia State Highway No. 31 between Douglas, Georgia, and Pearson, Georgia, in Coffee County, Georgia, in his 1952 model Packard automobile at a speed of about 25 miles per hour and with due care and caution when he attempted to cross over the Satilla River in Coffee County, Georgia, by the use of said detour bridge, which is a public bridge, his said automobile started to slip, slide and swerve and became unbalanced and uncontrollable on account of the uneven flooring on said detour bridge and ran into and over the slick black tar and onto the red slick clay which had washed on the detour bridge and the approach thereto. Plaintiff shows that after his said automobile ran into and over said black slick tar and red slick clay the said automobile slipped, and swerved from one side of said bridge and the abutment to same, to the other side of said bridge and said auto became more unbalanced and as a result he was unable to steer and direct same, although he used extreme care and caution to steer and control same, and his automobile ran off to the left side of said approach to said detour bridge and into several large and deep washouts which threw his automobile completely off the approach of said detour bridge and turned same over. Plaintiff shows that he was unable to steer and direct his automobile for the reason it slipped and swerved from one side of said bridge and the approach thereto to the other side and same became unbalanced by the uneven flooring on said bridge and became more uncontrollable and unbalanced when same ran into the black tar and red slick clay on the bridge and on the north approach and abutment to said bridge. The said black slick tar and the red slick clay and mud made the said automobile slip and slide on said bridge and on the approach thereto and as a result the plaintiff was unable to steer and direct the movement of said automobile. After the said automobile became unbalanced and uncontrollable it swerved and slipped to the left side of said approach and into several deep washouts on the west side of said abutment. When plaintiff's automobile hit these washouts which were about two feet wide and about five feet long and about three feet deep, 35 feet north of the north end of said detour bridge it was thrown into a large body of water on the left side of the approach and his automobile was badly damaged and plaintiff was personally injured from being thrown about with great force and violence within his automobile against interior of same. Plaintiff shows that there were no guardrails on the side of the approach to hold his car from falling into said body of water . . .
"14. Plaintiff shows that he exercised ordinary care and diligence at the time he suffered said personal injuries and the damages to his said automobile and that the negligence of the defendants were the approximate cause of his damages.
"15. Plaintiff shows that the said detour bridge and abutments thereto were built by plans approved by the Highway Department of Georgia and that the Highway Department approved all plans for the new permanent concrete bridge. Plaintiff shows that inspectors and engineers of the Highway Department of the State of Georgia inspected the progress and condition of both bridges at various periods of time and knew or by the exercise of ordinary care and diligence should have known of the negligence and negligent condition of said detour bridge and the approach thereto. Plaintiff shows that the inspectors knew or by the exercise of ordinary diligence and care should have known of these conditions of the said detour bridge and the approach thereto but they did not take any corrective or remedial measures to improve them. Plaintiff shows that several rains had come previous to this wreck of his and that said inspectors saw or by the exercise of ordinary care and diligence should have seen the red slick mud and clay on the approach to the detour bridge and also knew or by the exercise of ordinary care and diligence should have known of the large holes on the west side of said approach to said detour bridge. Plaintiff shows that the defendant H. G. Smith and the inspectors and engineers of the Highway Department of the State of Georgia knew or by the exercise of ordinary care and diligence should have known of the faulty condition of the detour bridge and the approaches thereto at the time of his injury and the damages to his said automobile.
"16. Plaintiff shows that the County Commissioners of Coffee County, Georgia, are: Chairman F. R. Griffin, Members B. D. Davis and J. H. Kight, and that they knew or by the exercise of ordinary care and diligence should have known of the faulty condition of said detour bridge and the approach thereto at the time plaintiff suffered his injuries and damages. Plaintiff shows that the defendant, H. G. Smith, the inspectors and engineers of the Highway Department of the State of Georgia and the County Commissioners of Coffee County, Georgia, failed to keep a guard posted or warning lights burning to warn the plaintiff and other traffic of the imminent danger.
"Plaintiff shows that if a guard had been posted or a warning light placed on the south approach to said bridge then these damages and injuries would not have happened to him. Plaintiff shows that defendants were negligent in that they permitted large holes to be left uncovered and unguarded on the north approach and abutments of said bridge. Plaintiff shows that said above stated negligent acts and the defects in said detour bridge and the approaches to same had existed for at least two months before said injury and should have been known by the defendants."
J. The only question for this court to decide is whether or not as a matter of law the court erred in sustaining the general demurrer. The Supreme Court in Krueger v. MacDougald, 148 Ga. 429 (96 S. E. 867) said: "It is an elementary rule of construction as applied to a pleading, that [on demurrer] it is to be construed most strongly against the pleader; and that if an inference unfavorable to the right of a party claiming a right under such a pleading may be fairly drawn from the facts stated therein, such inference will prevail in determining the rights of the parties." In Butler v. Jones, 85 Ga. App. 158, 161 (68 S. E. 2d 173), the Court of Appeals said: "The pleading will be judged by the facts alleged and not by the mere conclusions of the pleader; therefore, as against a general demurrer, it is not sufficient to allege a mere conclusion of law. It is not enough to aver facts from which the ultimate fact may be inferred unless the evidentiary facts pleaded are such as to demand the inference of its existence." See also Wilkinson v. Rich's, Inc., 77 Ga. App. 239 (48 S. E. 2d 552), and Bivins v. Tucker, 41 Ga. App. 771, 774 (154 S. E. 820). It will be noted that the plaintiff nowhere alleges that he had no knowledge of the dangers and unsafe condition of the detour bridge and the approaches thereto. He draws many conclusions as to why the judgment of the trial court overruling the general demurrer should be reversed. The failure to allege that he did not know of the conditions, and had no means of knowing of the conditions, creates the presumption that he did know of the facts. See Grady County v. Groover, 81 Ga. App. 617, 626 (59 S. E. 2d 506), as follows: "On a motion to dismiss in the nature of a general demurrer the petition must be construed against the plaintiff. It alleged that Mrs. Groover, at the time and place and under the circumstances had no notice or knowledge that the bridge in its condition aforesaid had been constructed or was being maintained at the location aforesaid. Construing this allegation against the plaintiff it means that Mrs. Groover knew that the bridge was a narrow, one-way bridge. The plaintiff had the choice of his allegations and could have alleged that Mrs. Groover did not know that the bridge was a narrow, one-way bridge if it had been true." In Vaissiere v. J. B. Pound Hotel Co., 184 Ga. 72 (190 S. E. 354), The Supreme Court said: "Construing the petition most strongly against the plaintiff, and there being no allegation that the room was not properly lighted, it will be assumed that the open space between the rostrum and the wall was obvious. Being so, she was bound to know of danger of stepping off the edge of the rostrum when she stepped back to avoid striking her companion. In such circumstances her act in stepping on the edge of the rostrum and falling showed such want to ordinary care as would prevent a recovery."
It is elementary that the allegations of the pleadings are to be construed most strongly against the pleader, when attacked by demurrer. A general demurrer does not admit the legal conclusions drawn from the petition. See Brown v. Massachusetts Mills, 7 Ga. App. 642 (1) (67 S. E. 832); Yatesville Banking Co. v. Fourth National Bank, 17 Ga. App. 420 (3a) (87 S. E. 606); Anthony v. Dudley Sash, Door &c. Co, 21 Ga. App. 412 (94 S. E. 634).
It will be noted that the plaintiff had traversed the southern approach of 250 feet to the detour bridge, had traversed 300 feet (the length of the detour bridge) and had traversed 35 feet of the northern approach of the detour bridge without reducing his speed, and had traversed such distances at a speed of 25 miles per hour. It might be well in this connection to call attention to certain Code sections which are applicable in determining whether or not the plaintiff on the occasion in question was exercising due care for his own protection. Code 105-603 reads: "If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover." And see Code (Ann. Supp.) 68-1626, as follows: "(a) No person shall drive a vehicle on a street of highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing . . . (c) The driver of every vehicle shall, consistent with the requirements of subdivision (a), drive at an appropriate reduced speed when approaching and crossing an intersection or railway grade crossing, when approaching and going around a curve, when approaching a hill crest, when travelling upon any narrow or winding roadway, and when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions."
Counsel for the plaintiff call our attention to Havird v. Richmond County, 47 Ga. App. 580 (171 S. E. 220), and argue at length that that decision is controlling here to the effect that the court erred in sustaining the demurrer and dismissing the petition. We see nothing in that case to sustain the contentions of the plaintiff, because the question here is not that the defendants are immune from liability from negligence in constructing and maintaining a detour bridge, but the question here is that there is no allegation that the plaintiff did not know of this situation. He lived in Ben Hill County, a county adjoining Coffee County; and, construing his petition most strongly against him, as stated above, he drove his heavy car over the southern approach to the detour bridge, over the bridge, and then 35 feet onto the northern approach, knowing of the defects, and knowing the condition which existed after a heavy rain. No such question is raised in Havird v. Richmond County, supra. In driving his car in the manner alleged, and under the decisions and Code sections above cited, the plaintiff was guilty of failure to exercise ordinary care for his own safety, if not guilty of gross negligence. This being true, he was the author of his own misfortune. This is true regardless of whether or not the defendants were negligent in the performance of their duties. No such question or facts are presented in Havird v. Richmond County. Our attention is called by counsel for the plaintiff to State Construction Co. v. Johnson, 82 Ga. App. 698 (62 S. E. 2d 413). We find no applicability of the decision in that case under its facts, in relation to the instant case under the allegations of fact and the law herein involved. Our attention is called also by counsel for the plaintiff to Hancock County v. Clark, 46 Ga. App. 363 (167 S. E. 748). The decision and facts in that case are not germane to the issues in the instant case. Counsel for the plaintiff states that there are many cases with facts similar to those in the instant case where it was held that such acts constituted negligence. The cases cited are Dixon v. Mitchell County, 20 Ga. App. 21 (92 S. E. 405), Cox v. Ware County, 52 Ga. App. 45 (182 S. E. 408), Daniels v. Town of Athens, 55 Ga. 609, and Morgan County v. Glass, 139 Ga. 415 (77 S. E. 583). These authorities are not in point with the issues now before us.
The court did not err, under the allegations of fact in the instant case, in sustaining the demurrer and dismissing the petition.
Judgment affirmed. Townsend and Carlisle, JJ., concur.
Paul Miller, Bennett, Pedrick & Bennett, H. J. Quincey, contra.
Ewing & Farrar, George Jordan, for plaintiff in error.
DECIDED JUNE 6, 1955.
Saturday May 23 03:01 EDT


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