Opinion
32794.
DECIDED FEBRUARY 2, 1950.
Damages; from Newnan City Court — Judge Powell. September 29, 1949.
Eugene Cook, Attorney-General, W. V. Rice, Cam D. Dorsey Jr., T. V. Williams, Assistant Attorneys-General, and Walter D. Sanders, for plaintiff in error.
S. B. Wallace, J. L. Glover, contra.
Construing the petition most strongly against the pleader, the conclusion is demanded that the sole proximate cause of the injuries sued for was the acts of the driver of the automobile, and that the absence of guardrails from half of the north side of the bridge did not cause or contribute to the injuries.
DECIDED FEBRUARY 2, 1950.
H. A. Banister, administrator of the estate of E. F. Banister, deceased, sued Coweta County for the death of the deceased. The amended petition alleged substantially: that on March 19, 1949, at about 10 p. m. the deceased was traveling in his automobile in an easterly direction along State Highway 34 in said county about two miles east of Newnan, Georgia, at the rate of 25 miles per hour; that the deceased came upon a bridge over a stream on said highway, which bridge had been allowed by the defendants to become defective and dangerous to the public using said bridge; that the guardrails on the bridge were down and broken off at least half way across the upper or north side of the bridge; that the bridge had been in such defective condition a sufficient length of time for the defendants to have knowledge of the defective condition and to provide sufficient opportunity to replace said guardrail; that the guardrails had been down and broken off and defective for three months previous to said damages inflicted on the deceased; that, on account of the defective condition of the bridge and the absence of proper guardrails, the deceased's automobile fell from the bridge into the deep cut and stream, causing the deceased to receive head and internal injuries from which he died; that the defective bridge was unusually dangerous to the using public and the deceased on account of the fact that the bridge was at the beginning of a right-angle curve or turn on the highway, and therefore was specially in need of guardrails to protect the using public and to indicate the edge and beginning of the bridge; that, on account of the absence of the guardrails, the users and the deceased were not able to ascertain where the bridge began or where the northern edge of the bridge began or ended; that the deceased had no knowledge of the defective condition of the bridge and was using ordinary care at the time of the injury which caused his death; that the bridge was erected since the passage of the act of 1888, codified as § 95-1001, and was a public bridge; that it was the duty of the State Highway Department to maintain and repair the bridge for the use of the public traveling thereon; that the Highway Department was negligent in failing to keep the bridge in proper repair and necessary guardrails at the edge of such bridge. The defendant's general demurrer to the amended petition was overruled, and the defendant excepts.
It is not specifically alleged that any negligence of the defendant was the proximate cause of the death of the plaintiff's intestate, but treating the allegation, "Defendants have injured and damaged . . by reason of the following facts," as being sufficient, it nevertheless must be held that no cause of action is set forth by the amended petition. The petition alleges that the guardrails on the bridge on the highway in question "were broken down and broken off at least half way across the upper or north side of said of said bridge." It alleges that the bridge was at the beginning of a right-angle turn. It is not alleged whether the guardrails were missing from the east or west half of the north side of the bridge. It is also not alleged whether the right-angle turn was on the east or west side of the bridge and in what direction it turned. In the absence of such allegations, this court cannot determine whether the missing guardrails, even if their absence amounted to negligence, might be found to be the proximate cause of the injuries sued for. Construing the petition against the pleader, the right-angle turn must be construed to be on the east side of the northern side of the bridge. In this situation. we do not think that the missing guardrails could be said to have been the proximate cause of the automobile running off the bridge. So construing the petition, the automobile approached the bridge in a straight line. The driver could determine from the guardrails on the east side where the bridge started; and if he was properly on the right- hand side of the bridge (Code § 68-303), he could determine from the guardrails on the south side where the end of the bridge was located before turning into the right-angle turn to the right. The ruling in this case is confined to the facts as the petition is construed to allege them, under the rule of construction against the pleader. No opinion is expressed as to any other state of facts not before us. Under the construction placed on the petition, we hold that the sole proximate cause of the injuries was the acts of the driver of the automobile, and that the negligence of the county, if any, did not cause or contribute to the injuries. The driver of the automobile could have discovered the negligence of the county, if any, by the exercise of ordinary care, and could have avoided such negligence, if any, by the exercise of ordinary care.
The court erred in overruling the general demurrer to the petition.
Judgment reversed. Sutton, C. J., and Worrill, J., concur.