Central of Georgia Railway Co. v. Keating , 47 Ga. App. 336 ( 1933 )

Sutton, J.

The Supreme Court, in the case of Central of Georgia Ry. Co. v. Keating, 177 Ga. 345 (170 S. E. — ), reversed the judgment of this court in Central of Georgia Ry. Co. v. Keating, 45 Ga. App. 811 (165 S. E. 873), holding that this court erred in certain of its rulings therein. The Supreme Court held that this court erred in holding that the trial judge did not err in refusing to admit evidence with reference to the speed of a certain automobile shortly before the accident. Therefore division 1 of the opinion of this court and the corresponding lieadnote are revoked and overruled. The Supreme Court further ruled that the special demurrer of the defendant to the allegations of paragraphs 12, 22, and subparagraph 3 of paragraph 25 of the petition, to the effect that the defendant was negligent in “ allowing sand, rock, and gravel to accumulate and be raked in the road in the approach to said bridge,” should have been sustained. In division 14 of the opinion of this court it was ruled: “No error is shown in the court’s action in overruling the special demurrers.” This portion of the opinion is now modified and changed in conformity to the ruling of the Supreme Court. Division 7 of the opinion of this court, wherein it was held that “it was not error for the court to charge the jury that the plaintiff is entitled to recover if he proves any one or more of the grounds of negligence charged in his petition, to the satisfaction of the jury,” is hereby revoked and overruled, because “the ground of negligence stated in subparagraph 3 of paragraph 25, without more, did not constitute a legal basis of recovery.” It necessarily follows that the trial .judge erred in overruling the motion for new trial, filed by the defendant railway company. The rulings of this court in its decision in 45 Ga. App. 811, not affected by the decision of the Supreme Court in 177 Ga. 345, are hereby approved and made the law of this case.

Judgment reversed.

Jenlcins, P. J., and Stephens, J., concur.