Yancey v. Southern Railway Co. , 99 Ga. App. 493 ( 1959 )

Gardner, Presiding Judge,

concurring specially. This court, in the majority opinion, has ruled in this case that “The presence of a piece of gravel on a railroad crossing is not such negligence, as a matter of law, as will form the basis for recovery on the part of a plaintiff injured by reason thereof in an action against a railroad company.” The facts show, in paragraph 13 of the petition, that “As the plaintiff reached the crossing, he was looking carefully in each direction and listening to the best of his ability for any sign of an approaching train or automobile traversing the crossing and while plaintiff was so engaged he stepped on a piece of gravel on the asphalt crossing.” In paragraph 14 of said petition the plaintiff set forth “When the plaintiff stepped down with his left foot the piece of gravel under his feet rolled, causing his foot to go. into a large hole which was located on Church Street and between the defendant’s tracks, said hole being approximately 6 inches deep and 12 inches in diameter. As a result of plaintiff’s foot going into the hole” he was injured. There was no demurrer directed specifically to these paragraphs, the defendant setting forth that the petition set forth no cause of action; that same affirmatively shows on its face that the proximate cause of the plaintiff’s injury was his own negligence, and that same affirmatively shows on its face that, by the exercise of ordinary care, the plaintiff could have avoided the alleged injury allegedly caused by the defendant’s alleged negligence. Code § 94-503 provides and makes it the duty of the railroad company operating in this State, as follows: “All railroad companies shall keep in good order, at their expense, the public roads or private ways established pursuant to law, where crossed by their several roads . . . according to the spirit of the road laws.” The following section, 94-504, sets forth: “Such crossings shall include the width of land on both sides of the road allowed by charter or appropriated by the company therefor, and as many feet beyond, each way, as is necessary for a traveler to get on and off the crossing safely and conveniently.”

Whether the railroad company maintained such public roads or private ways in “good order” is ¡a jury question. It has been held that a violation of Code §§ 94-503 and 94-504 is negligence per se and that it is not error to so charge the jury. Central of Georgia Ry. Co. v. Dumas, 44 Ga. App. 152 (7) (160 S. E. 814). Whether a crossing, coming within the purview of this law, is in “good order . . . according to the spirit of the road laws” has been ruled to be a jury question. See Pollard v. Boatwright, 57 Ga. App. 565 (196 S. E. 215).

The courts have uniformly held that a petition is not subject to demurrer where the allegations therein are that the railroad company being sued was negligent in not doing certain things or in permitting certain conditions to exist relative to such crossing, which resulted in its failure to comply with the law in keeping a public crossing or private way (under Code § 94-503) in “good order”, same being entirely a question for the jury.

The cases cited by the majority of the court have naught to do with the situation presented by the petition in the case sub judice as being subject to special demurrers (there being no special demurrers urged thereto, the ruling is necessarily based on the general demurrers). The case of City of East Point v. Mason, 86 Ga. App. 832 (72 S. E. 2d 787) deals with the requirements of municipal authorities “to keep their sidewalks and streets free from loose gravel”; and in Butler v. Jones, 85 Ga. App. 158 (68 S. E. 2d 173) this court deals with the fact that a small stone was permitted to remain on or near a step to a clinic. See also Central of Georgia Ry. Co. v. Keating, 177 Ga. 345 (170 S. E. 493).

The pleader in his petition may charge that a certain condition in the railroad crossing charged as a violation of Code §§ 94-503 and 94-504 is negligence, does not comply with the law in keeping and maintaining the crossing in good order, that this is a jury question and if the condition “could amount” to negligence, the pleading is not subject to demurrer. Pollard v. Boatwright, 57 Ga. App. 565, supra.

Since there were no special demurrers directed to the allegations in the 13th and 14th paragraphs of the plaintiff’s petition to the effect that there was loose gravel on this public crossing upon which the plaintiff stepped and was caused to slip and stumble and then to fall into a hole in the asphalt with which such crossing was paved, I cannot agree under the record in this case with the statement that “As a matter of law, the presence of a piece of gravel on a railroad crossing is not negligence and the trial court did not err in sustaining the special grounds of demurrer wherein this matter was alleged as a basis for recovery.”

As this case is reversed as to the ruling of the trial court that the plaintiff was not entitled to recover under the allegations of the petition (to which ruling I agree), I specially concur in the judgment of the majority opinion, wherein the judgment is reversed in part and affirmed in part.