Opinion
39023.
DECIDED SEPTEMBER 28, 1961. REHEARING DENIED OCTOBER 19, 1961.
Action for damages. Richmond Superior Court. Before Judge Anderson.
Fulcher, Fulcher, Hagler Harper, J. Walker Harper, for plaintiffs in error.
Lanier, Powell Cooper, Clarence L. Powell, contra.
An action against a railroad company alleging in substance that the plaintiff collided with iron spikes erected to protect a signal post on a railroad right of way, said post and spikes being located several feet to the side of the roadway where it crossed the railroad tracks and an undetermined distance beyond the end of a strip of asphalt put down to widen the roadway up to the railroad right of way only, is not maintainable, there being no duty on the railroad as an occupier of land to maintain its premises in a safe condition for travel at points not reached by ordinary deviations from the highway incident to careful travel thereon.
DECIDED SEPTEMBER 28, 1961 — REHEARING DENIED OCTOBER 19, 1961.
Carrie Parker filed an action for damages in the Superior Court of Richmond County against the defendant railroads alleging that she was driving her automobile on a dark, rainy night in a southerly direction along a public highway; that the highway, which is crossed by the defendants' right of way, is 33 feet wide on the north side of the crossing; that she was proceeding south until she reached the portion of the right of way crossing the road, when her automobile struck an obstruction on the right of way consisting of iron rails anchored vertically into the right of way and as the result of this collision sustained various injuries and that the obstruction was located "in the width of said highway as prolonged over said crossing." The negligence alleged is that the defendants maintained an obstruction on their right of way "in the area covered by the prolongation of Kissingbower Road from the northern side of said right of way," "by placing and maintaining an obstruction on defendants' right of way in the prolongation of Kissingbower Road a distance of approximately 6 to 8 feet east from the western edge of said road as prolonged across the right of way of the defendant and on the northern portion of defendant's right of way."
The defendants filed a general demurrer to the plaintiff's petition which was overruled and the case proceeded to trial. The undisputed testimony revealed that Kissingbower Road, originally a paved street 20 feet in width, had been widened by adding 9 feet of pavement on its west side up to the railroad right of way, where the extra pavement ended. In the right of way and about six feet west of the street as it crossed the track was a railroad signal post. After the city widened the street on the north side of the right of way the railroad placed upright stakes located about 34 inches from the concrete base of the signal post around the post in order to protect it, and it was one or more of these stakes upon which the plaintiff drove her automobile.
Following a verdict for the plaintiff the defendants filed a motion for judgment notwithstanding the verdict in accordance with their previous motion for a directed verdict. This motion was overruled and error is assigned thereon and on the judgment overruling the general demurrers.
It is obvious from the allegations of the petition that the spot where the iron spikes were placed was on property belonging to the defendants, and it is also obvious that this spot was not on the roadway in question but was on a theoretical projection or prolongation of said roadway. Since it is not alleged that the spikes were immediately at the end of the street it may fairly be assumed against the pleader that they were set back at some distance from the end of the street, and, since it is not alleged that they were embedded in asphalt or any other substance which in any way resembled the road itself it may also be assumed that the right of way at the place where the signal post and rails were erected was not paved surface, although it is specifically alleged that Kissingbower Road was paved. It therefore appears that the obstruction was not on a street or roadway, but was beyond the end of the paved street extension on the railroad's property, a place where such a railroad signal post would normally and non-negligently be placed. The obstacle accordingly cannot be treated as an obstacle placed in a street, but as one placed on the premises of the owner, as to which the plaintiff was unfortunately an unwitting trespasser. One who owns or controls property owes no duty to a trespasser except not to wilfully or recklessly injure him. A. C. L. R. Co. v. O'Neal, 180 Ga. 153 ( 178 S.E. 451). "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." Poole v. Southern Ry. Co., 34 Ga. App. 290 (3) ( 129 S.E. 297). The Poole case closely resembles this case except that there it appeared that approximately 50 feet separated the end of the highway from the railroad's obstruction on its right of way; here the distance is not shown, but, again construing the petition against the pleader, this fact must militate against rather than in favor of the plaintiff's right of action. Since it affirmatively appears from the petition that the obstruction was not located on the roadway but at some undisclosed point on the railroad right of way on a spot where the road would merely have been projected, but where it did not exist, it was error to overrule the general demurrer to the petition. Since the petition failed to set out a cause of action, and the deficiency was not supplied by evidence during the course of the trial, it was error to overrule the motion for judgment notwithstanding the verdict as well as the general demurrer to the petition.
Judgment reversed. Frankum and Jordan, JJ., concur.