Georgia Power Co. v. Murray

Per Curiam.

The gist of the action in the present case is that the defendant was negligent in failing to provide barriers to prevent the automobile, which the plaintiff’s deceased son was driving at night, from traversing a sloping strip of land, 7 or 10 feet' wide, adjacent to a highway, and thence into a pond which, with the land adjacent to the highway, was maintained by the defendant. We think that the ease is to be determined by the ruling in Greenfield v. Watson, 54 Ga. App. 9 (187 S. E. 183), in which it was held: “The duty of a landowner not to maintain on his premises a dangerous excavation extends not only to express or implied invitees, but to travelers on a public sidewalk or highway or a much-traveled and commonly-used private way, immediately adjoining or closely adjacent to the excavation, so that persons passing along the sidewalk or way may not be injured, if, while in the exercise of ordinary care, by necessity or accident they slightly deviate from such sidewalk or way. But this duty does not extend to a person who is not an express or implied invitee, who falls into an excavation so far from a sidewalk or public or private way that it can not be reached by any slight or ordinary deviation incident to travel thereon by one exercising ordinary care.” Quoting from several cases it was said in the opinion: “‘The distance from the highway to that which caused the injury will in many cases determine whether there was a duty to guard the highway. When the adjacent land is level or practically so, and that which caused the injury is so far removed that a traveler in the exercise of due care would not have been injured thereby, no duty to the traveler would arise. When the land is precipitous, a duty to the traveler arises where under other conditions no duty would arise.’ City Council of Augusta v. Dozier, 126 Ga. 524 (55 S. E. 234); N., C. & St. L. Ry. v. Cook, 177 Ga. 196, 199 (170 S. E. 28). If a hole on the property of a landowner becomes perilous to travelers on a highway, it makes no difference whether it already pre-existed on the land, or whether it was created by the direct act of the landowner, for it is his duty not only not negligently to create such a danger, but not negligently to maintain it. See So. Ry. Co. v. Autry, 36 Ga. App. 552 (137 S. E. 414). But ‘the owner of land traversed by a public highway is under no duty to a traveler along the highway to maintain in a safe condition for travel the abutting premises at a point such a distance from the highway that it can not be reached by the ordinary deviations from the highway incident to careful traveling thereon, but can only be reached by a traveler who has, negligently and in a manner oblivious of his own safety, completely abandoned the highway and gone over onto the abutting premises.5 Poole v. So. Ry. Co., 34 Ga. App. 290 (3) (129 S. E. 297). . . But where a traveler leaves a publicly-used passageway and is injured some distance therefrom, the landowner is not liable. Etheridge v. Central of Ga. Ry. Co., 122 Ga. 853 (2), 855 (50 S. E. 1003). These restrictions and limitations on the liability of a landowner to persons traveling upon or close to public streets and highways and publicly-used private ways have not been extended in this State, but have been narrowed particularly in cases of owners of railroads with cuts or excavations running parallel to public highways. In Frankum v. Farlinger, 35 Ga. App. 305 (132 S. E. 923), it was held: “The owner of premises abutting on a public road is under no duty to keep the premises at a point some distance from the road in a safe condition for pedestrians who, not in the ordinary course of travel, wander off the road and come uninvited on the premises. Thus, a person traveling along the road upon a dark night in an automobile, who leaves the automobile and goes uninvited upon the premises, and, at a point eight or ten feet from the road, falls into an unguarded well and is injured, can not recover from the owner of the premises for such injuries. [Citing.]55

The allegations of the petition show conclusively that the act of the driver of the automobile was not a “misstep55 or a “slight deviation55 which would be necessary to bring the present case within the ruling in Greenfield v. Watson, supra. Consequently no cause of action was set forth in any count of the petition. The present case is distinguishable from City Council of Augusta v. Dozier, referred to in Greenfield v. Watson, where the adjacent land was precipitous, and where, immediately upon a slight deviation, the traveler was imperiled. It is also distinguishable from Cox v. Greenfield, 50 Ga. App. 699 (179 S. E. 178), as pointed out in Greenfield v. Watson, supra, the averment in the petition being that the injury occurred by a misstep while on a well-defined path. The allegations of the petition in the present case to the effect that the slope of land over which the traveler proceeded in leaving the highway was covered with evergreen brush and small trees negative any idea that the “slope” was a well-defined path or a continuation of the highway along which he was traveling.

The plaintiff sought to excuse the conduct of the driver of the automobile by certain allegations which appear as paragraph 22 in each count of the petition. In that paragraph it was alleged in count 1 that “the course that the automobile took into the lake was in no way controlled or directed by the said Murray; but it was caused by the sudden and involuntary falling asleep of the said Murray.” No reason was assigned as to the cause of the “falling asleep.” While the question whether or not it is negligent for a driver of an automobile to fall asleep while driving does not seem to have been specifically passed on in this State, it was said in Whiddon v. Malone, 220 Ala. 220 (124 So. 516, 519) : “Without extending discussion, we hold that going to sleep at the wheel while operating a car is evidence of negligence. The dangers of running a car while asleep are so obvious as to need no comment. It is the duty of the driver to keep awake or cease to drive. A failure so to do is prima facie evidence of negligence. The burden passes to the defendant to show some unusual cause of his falling asleep which reasonable diligence could not foresee nor forestall.” Mr. Blashfield in his Cyclopedia of Automobile Law (ed. 1927), vol. 1, 270, § 16, states: “In any ordinary case one can not go to sleep while driving an automobile without having relaxed the vigilance which the law requires, and it lies within his own control to keep awake or to cease from driving, and so the mere fact of his going to sleep while driving is a proper basis for an inference of negligence sufficient to make out a prima facie case against him for injuries sustained by another while so driving, and sufficient for a recovery if no circumstances tending to excuse or justify his conduct are proven.” The petition does not allege any unusual cause of the driver’s falling asleep which reasonable diligence could not forestall, and under count 1, paragraph 22, it is shown that the injuries he received were the result of his own negligence. In paragraph 22 of the second count it is alleged: “That the course that the automobile took into the lake was in no way controlled or directed by the said Murray; but it was caused by an uncontrollable and unanticipated attack of some illness unknown to. your petitioner which caused him to lose consciousness.” This allegation shows nothing that it was the duty of the defendant to anticipate and provide against. As was said in City of Dallas v. Maxwell (Tex.), 248 S. W. 667, 27 A. L. R. 927, 933: “The weight of authority, which, to our mind, is in accord with sound principles, is to the effect that where the injury to the traveler results from loss of entire control and direction of an animal or machine, the occurrences fall within the domain of the unusual and extraordinary, and therefore, in contemplation of law, of the un<foreseeable. Of course this holding has no application to those cases in which some defect in the street was a contributing cause toward rendering the animal or machine uncontrollable.” . In this opinion the case of Corley v. Cobb County, 21 Ga. App. 219 (93 S. E. 1015), was cited and discussed approvingly. It,must be held that the allegations of paragraph 22, count 2, show a condition which it was not the duty of the defendant to foresee, and that the proximate cause of the plaintiff’s son’s injuries was the alleged ill-, ness and consequent loss of unconsciousness and of control of the automobile. In paragraph 22 of count 3 it is alleged: “That the course that the automobile took into the lake was in no way controlled or directed by the said Murray; but it was caused by his inadvertently and accidentally losing control of such of his faculties as are needed to drive an automobile safely along such roadway.” What has been said immediately above applies equally here, and no further discussion is necessary.

The allegation of paragraph 22 of count 4 is: “That the course that the said automobile took was due to the driver being deceived by the deceptive appearance of the roadway suddenly and abruptly narrowing as aforesaid, and the sudden and abrupt turning to the right to go upon the concrete bridge structure.” It is obvious that with the ccsxstruction and maintenance of the public highway the defendant >nad nothing to do. If it was deceptive, the defendant was powerless to change'the roadway, and was not liable for the alleged defect. See in this connection Callaway v. Georgia Railroad & Banking Co., 53 Ga. App. 785 (187 S. E. 399); Shedd v. Pollard, 55 Ga. App. 828 (191 S. E. 492). In paragraph 9 of the several counts it is alleged that the edge of the “slope” along ■which the car traveled before reaching the pond maintained by the. defendant was covered with evergreen brush and small trees. This fact was enough to put any reasonable man on guard, and to cause him to anticipate that the highway would not continue in that direction but would turn to the right. It is common knowledge that evergreen brush and small trees are not found growing in a public highway such as is described in the petition. A proper construction of the petition requires a holding that the driver of the automobile was negligent in proceeding across such a described “slope/5 and -that such negligence was the proximate cause of his injuries.

It follows from what is said above that the court erred in overruling the general demurrer to the petition.

Judgment reversed.

Sutton and MacIntyre, JJ., concur. Stephens, P. J., dissents.