DocketNumber: 34544
Citation Numbers: 87 Ga. App. 737, 75 S.E.2d 31, 1953 Ga. App. LEXIS 843
Judges: Carlisle
Filed Date: 3/10/1953
Status: Precedential
Modified Date: 11/8/2024
The plaintiff, in effect, alleged in his petition that each of the two defendant railway companies, in violation of its duty to keep the street crossed by its tracks in good order according to the spirit of the road laws, was negligent in specified particulars in its maintenance of Emory Street in the City of Dalton where that street is crossed by the rights-of-way of the respective railway companies, and that the negligence of each of the two companies concurred to cause the plaintiff’s damage. As against a general demurrer, the petition showed negligence on the part of the defendant railway companies in failing to keep the street crossing in good order, and that such negligence was the cause of the damage to the plaintiff’s automobile. Atlanta, Birmingham & Coast R. Co. v. Smith, 43 Ga. App. 457 (159 S. E. 298); Central of Georgia Ry. Co. v. Dumas, 44 Ga. App. 152 (7) (160 S. E. 814). And in the absence of allegations negativing these general allegations under a proper construction of the petition, the case must go to the jury for a determination of the questions of diligence and negligence, including contributory negligence, and proximate cause.
It does not appear from this record that the defendant Western & Atlantic Railroad interposed any demurrers to the petition. Counsel for Southern Railway Company contend, however, that, since it is alleged that the defendant was proceeding across the crossing from west to east, and the right-of-way of Southern Railway Company is west of that of the Western & Atlantic Railroad, the holes into which it is alleged the front wheels of the plaintiff’s car dropped, causing him to lose control of the car, were on the right-of-way of the Southern Railway, and that, since it is alleged that the plaintiff “having first entered upon the line and right-of-way occupied by the Southern Railway Company in crossing said East Emory Street and thence
We cannot agree with those contentions. Tire defendant Southern Railway Company did not require the plaintiff by special demurrer to state with greater particularity in what manner the front wheels of his car struck the holes or in what manner his loss of control caused him to strike the barrier or ridge. The plaintiff says that striking the holes caused him to lose control of the car, and that the loss of the control of the car caused him to strike the barrier. It does not appear what distance separated the holes from the barrier, and we cannot say as a matter of law -that these things did not occur or that the driver while traversing what is to us an unknown distance should have regained control of his automobile. The phrase, “to drive a vehicle,” does not conclusively connote that the vehicle driven is under the control of the driver at all times. The general allegations, as to the plaintiff having driven along Emory Street, and having first entered the right-of-way of Southern Railway Company, and having driven then upon the right-of-way of Western & Atlantic Railroad, do no more than establish the situs of the events which occurred and the relation of the one right-of-way to the other.
It is elementary that, where a duty is imposed by statute upon a class, such class cannot relieve itself of that duty by contract. Mixon v. Savannah & Atlanta R., 28 Ga. App. 390 (2) (111 S. E. 690); Atlanta & Fla. R. Co. v. Kimberly, 87 Ga. 161, 167 (13 S. E. 277, 27 Am. St. R. 231).
Whether or not the City of Dalton or the Water, Light & Sinking Fund Commission, or their contractor would, under the provisions of Code § 95-601, be liable for causing the alleged defects in the rights-of-way, in no way changes the present defendant’s duty to keep the crossing in good order. See, in this connection, Byne v. Mayor &c. of Americus, 6 Ga. App. 48 (64 S. E. 285).
Judgments affirmed.