Opinion
39832.
DECIDED JANUARY 21, 1963.
Action for damages. DeKalb Superior Court. Before Judge Dean.
George P. Dillard, Herbert O. Edwards, Robert E. Mozley, for plaintiff in error.
Dan E. McConaughy, contra.
The petition in this case, which charged negligence against the defendant county in maintaining a defective bridge, built after 1888, and alleged to be unsafe for ordinary travel by reason of certain alleged defects, set forth a cause of action good as against general demurrer.
DECIDED JANUARY 21, 1963.
This is an action against DeKalb County under Code Ann. § 95-1001, for damages on account of injuries sustained as a result of the alleged negligence of the county in maintaining a defective bridge. The petition alleged substantially as follows: On January 22, 1962, at approximately 6:30 p. m., the plaintiff was a guest passenger in a 1959 Renault Dauphine automobile, which had a distance of 48 inches between the two rear wheels. In crossing a certain public one-way bridge, built and maintained since 1888 by the defendant county, the wheels of the automobile went off the left-hand "runner," causing the automobile to swerve, throwing the plaintiff out and causing her personal injuries. The wooden runners were two inches thick and approximately 40 inches wide, with approximately a 36 inch space between them. They were not of the same thickness and were not level on both sides, being irregular in size and level; they were worn smooth by the vehicular traffic, by the weather, and by the fumes, oil, grease, and other debris dropping from the vehicular traffic over them. They were extremely slippery, especially when wet, and at the time and place of the accident it was dark and foggy and the runners were wet from a previous rain. The use of the bridge by similar automobiles for more than three years and the physical condition of the bridge were known to the defendant or should have been known by the exercise of ordinary diligence. The defendant was given written notice of the accident within one year after its occurrence.
The defendant filed a general demurrer and one special demurrer to the petition, both of which were overruled by the court, to which judgment the defendant excepts.
1. It is the duty of county authorities under Code § 95-1001, to construct and maintain bridges across streams in a workmanlike and proper manner, so that any person may use them in safety, in ordinary travel, ( County of Tattnall v. Newton, 112 Ga. 779, 38 S.E. 47; Stamps v. Newton County, 8 Ga. App. 229 (5), 68 S.E. 947), and "a traveler on the public highway, exercising due care, although he knows there is some danger in driving over a defective bridge, may recover for injuries thus sustained, unless the danger is obviously of such a character that driving over the bridge, in and of itself, amounts to a want of ordinary care." Elbert County v. Threlkeld, 145 Ga. 133 ( 88 S.E. 683); Coffee County v. Denton, 64 Ga. App. 368, 369 (1) ( 13 S.E.2d 209) and cit.
2. "A defect in a bridge, which serves as the basis for liability by a county for injuries received by reason thereof, includes any condition of the bridge which renders the bridge unsafe for travelers passing over the bridge" ( Havird v. Richmond County, 47 Ga. App. 580 (3), 171 S.E. 220), and includes "not only bridges defectively built, but bridges out of repair." County of Tattnall v. Newton, 112 Ga. 779, 782, supra.
3. There is really only one specification of negligence in the case and that is that the county was negligent in constructing and maintaining a bridge which was defective and dangerous because the distance between the runners was too great (affording only six inches of room on the runners for the left and right wheels of the vehicle in which the plaintiff was riding) when the runners were extremely slippery, especially when wet, because they were worn smooth and because they contained matter from fumes, oil, grease and other debris from vehicular traffic. The allegation of the combination of circumstances set forth a cause of action. Of course, the mere allegations of wooden construction, smoothness, wetness from rain, etc., would not constitute negligence, but the other allegations, especially that of the wide distance between the runners, set forth the cause of action to be submitted to a jury for decision. This court cannot take judicial notice that a bridge of the kind alleged is in general use, either from original construction or from repairs, in view of the advent of small vehicles with narrow wheel gauges. The court did not err in overruling the general demurrer.
4. The special demurrer complains that the allegation in the petition, that the plaintiff was riding as a guest passenger in the automobile at the time of the accident, is an unsubstantiated conclusion. "Good pleading requires only that the plaintiff plainly and concisely state the material ultimate facts upon which she depends for a recovery. As a general rule, the evidentiary facts upon which the plaintiff relies to prove the ultimate facts need not and should not be set forth in the pleadings. [Cases cited]." Lefkoff v. Sicro, 189 Ga. 554 (10) ( 6 S.E.2d 687, 133 ALR 738); Jackson v. Sanders, 199 Ga. 222, 227
( 33 S.E.2d 711, 159 ALR 638); Guardian Life Ins. Co. v. McMichael, 74 Ga. App. 53 ( 38 S.E.2d 689). The allegation was one of a material ultimate fact; therefore the demurrer was properly overruled. The petition does not disclose the identity of the host driver and the defendant would have been entitled to that information if a special demurrer directed to that inadequacy of the petition had been filed.
5. Under the foregoing rulings, the court did not err in overruling the defendant's demurrers to the petition.
Judgment affirmed. Russell, J., concurs. Eberhardt, J., concurs specially.
While I concur with the judgment of affirmance, I do so dubitante. As is pointed out in the opinion, the only effective specification of negligence has to do with the width of the space between the runners on the bridge. That is alleged to be 36 inches, while the width between the wheels of the small foreign-made car was 48 inches. While I think that these allegations negative any negligence of the county in this respect, the cumulative allegations of other conditions on the bridge may be sufficient to raise a jury question.