Autry v. Southern Railway Co. , 32 Ga. App. 8 ( 1924 )

Jenkins, P. J.

Where a railway company in the construction or maintenance of its line of track creates or allows a deep and dangerous hole to form and for several years to continue on its property, immediately contiguous to its track and extending out into its property used as a street by a municipality, the company may be liable in damages to one riding in an automobile which was deflected by a drain into such hole; and the fact that the municipality may also be liable for such injury on account of a failure to keep the street in proper condition will not absolve the company from any liability to which it may be subject, arising from its original joint or sole creation or allowance and from its plainly alleged joint maintenance of such nuisance. Ga. Ry. & Electric Co. v. Tompkins, 138 Ga. 596, 600 (75 S. E. 664); City of Augusta v. Dozier, 126 Ga. 524 (55 S. E. 234); Mayor &c. of Dalton v. Wilson, 118 Ga. 100 (44 S. E. 830, 98 Am. St. R. 101); Hutson v. King, 95 Ga. 271, 276 (22 S. E. 616); Settler v. City of Atlanta, 66 Ga. 195, 196; Etheridge v. Cen. of Ga. Ry. Co., 122 Ga. 853 (50 S. E. 351, 69 L. R. A. 117); Burton v. Western & Atl. R. Co., 98 Ga. 783 (25 S. E. 736); Sinkovitz v. Peters Land Co., 5 Ga. App. 788 (64 S. E. 93); Harris v. Rome, 10 Ga. App. 409, 410 (73 S. E. 532). The recognized rule in this State that “a railroad company is not required to fence in or place guards along its road where there may be cuts or embankments, notwithstanding a public road may run parallel to such railroad” (King v. Cen. of Ga. Ry. Co., 107 Ga. 754, 758, 33 S. E. 839; Collier v. Ga. R., 76 Ga. 611), has no application to the facts alleged in the instant case, where it is in effect set forth not only that the railroad company was responsible or partly responsible for the creation and joint maintenance of the alleged nuisance adjacent to its line of track, but that the nuisance thus created and jointly maintained extended out into its property used by the municipality as a public street. The petition making both the municipality and the railroad company defendants, it was error for the court to dismiss the petition on general demurrer as to the railway company.

Decided March 13, 1924. Rehearing denied June 16, 1924. Porter & Mebane, for plaintiff. Maddox, McCamy & McFarland, Hamilton & Hamilton, C. I. Carey, John Camp Havis, for defendants.

Judgment reversed.

Stephens and Bell, JJ., concur.