Opinion
33060.
DECIDED MAY 19, 1950.
Damages; from Grady Superior Court — Judge Crow. March 10, 1950.
Eugene Cook, Attorney-General, W. V. Rice, Cam D. Dorsey Jr., T. V. Williams, Assistant Attorneys-General, Cain Smith, for plaintiffs in error.
Frank S. Twitty, Bell Baker, contra.
The court did not err in overruling the motion to dismiss the action in the nature of a general demurrer.
DECIDED MAY 19, 1950.
E. F. Groover sued Grady County to recover damages allegedly resulting from the negligence of the county in maintaining a bridge alleged to be defective as to the bridge proper and as to its approach. The petition as amended alleged substantially the following (omitting allegations not necessary to a decision of the questions involved): that the bridge was on a State-aid road; "5. That on March 27, 1949, plaintiff's wife, Mrs. E. F. Groover and her friend, Mrs. Rena Andrews, were traveling in the automobile of plaintiff's wife, being driven and operated by the latter, when at approximately 8 o'clock p. m. as they were proceeding north from Cairo, Georgia, on said State Road No. 93, they approached a public bridge at Gin Branch on said highway about three miles north of Cairo. 6. That as they came in sight of and approached said bridge, the said Mrs. Groover was traveling and operating her said automobile at a speed of approximately 45 miles an hour. 7. That the bridge at this location had washed away during the flood conditions which occurred in South Georgia on or about April 1, 1948, with the result that the State Highway Department had on or about April 7, 1948, placed a bridge commonly known as a Bailey bridge on top of what remained of the old bridge and its approaches at said location on said highway. 8. That said Bailey bridge after being so placed and located had a double row of heavy steel trusses supporting the 80-foot main or central level of the bridge, with a ramp at each end extending downward from the main level towards the paved roadway and said highway. 9. That the entire floor of the bridge, including the main or central floor and the ramps at each end, was composed of wooden strips or slats held together by a heavy metal strip on each side which was joined to and connected with the steel trusses on the outer edge of the floor of said bridge including the ramps on each end thereof. Each of said wooden slats or strips was approximately three inches wide. 10. That the main or central floor of the bridge was approximately two feet above the level of the paved roadway of said highway and the ramp at the south end, being 20 feet in length, was built downward from the central floor level of said Bailey bridge at a downward angle of approximately 10 degrees and the end of the ramp rested on the highway about 6 inches above the level of the paved roadway of said highway. 11. That in an effort to connect the end of said ramp and said Bailey bridge with the paved roadway of said highway the said State Highway Department of Georgia had caused some asphalt to be placed and spread out at the end of said ramp for a distance of several feet towards the south, thus creating an asphalt approach from said paved roadway to the entrance to said ramp and said bridge. 12. That at the south end of said Bailey bridge, between the end of said double row of steel trusses and the end of said ramp, being a distance of approximately 20 feet, the ramp rested on heavy metal sills, which sills rested on the old paved approach and roadway of said highway, said metal sills being approximately five feet apart and standing from 12 to 15 inches above the paved roadway of said highway and the end of said metal sills extending from the eastern edge of the floor of said ramp eastwardly out into the open, running along the old paved roadway eastwardly for a distance of approximately five feet. 13. That as aforesaid a heavy metal strip had been placed and constructed on the outer edge of the floor of said bridge and this heavy metal strip, approximately 9 inches high was continued on out to the edge of said ramp and to the north edge of said asphalt approach. 14. That the State Highway Department had marked off a distinctive white line up and down along the center of the paved roadway of said highway, which white center line extended up to the said temporary asphalt approach at the south end of said Bailey bridge; in other words, extending to within not more than six or eight feet from the actual entrance to said Bailey bridge. 15. That said paved roadway was approximately 19 feet in width, so that an automobile traveling north on said highway would have been traveling, if it had remained on the right hand side of said center line, in a travel lane not exceeding 9 1/2 feet in width. 16. That said Bailey bridge had an inside clearance, that is to say, a clear and cleared space for travel inside the metal strips and trusses of said bridge approximately 10 feet in width, so that if said Bailey bridge had been exactly centered up and down on and along said highway and its paved roadway, each of the lanes of travel of said highway and its paved roadway on the south side of said bridge as marked off and delineated by said center line would have been suddenly and abruptly reduced from 9 1/2 feet to 5 feet in width at the entrance to the asphalt approach as well as at entrance to the said ramp and to the bridge itself. 17. Petitioner shows, however, that when the said Bailey bridge was first placed and erected at said location as aforesaid, it was not placed and erected so as to be centered on and along said highway and said paved roadway, but was constructed, erected and thereafter maintained up to and including said date of March 27, 1949, at an angle to said highway and said paved roadway and to its center line, so that on the south side of said bridge, the southeast end or corner thereof extended and protruded approximately 18 inches over into the reduced five feet which (if said bridge had been centered on and along said highway and paved roadway) would have been open and available in the east travel lane for use by vehicular travel at the entrance to the ramp and to the bridge itself, so that on account of said bridge being off-center as aforesaid and extending and protruding out approximately 18 inches as aforesaid into the lane and line of travel on the south side and at the entrance to said bridge, the entrance to said approach, ramp and bridge aforesaid was further and dangerously reduced thereby, so that there was only a clearance of approximately 3 1/2 feet between the center line of said roadway on the one side and said metal strip, the metal sills aforesaid and the steel trusses aforesaid on the other or east side. 18. That the right of way of said highway and the paved roadway thereof as well as the approaches to and the original bridge constructed at said location at the time the said highway was originally paved about 10 years ago were each and all on a straight line for a distance of at least one-half mile on each side of said bridge location. 19. That the protrusion of said bridge and on account of its being off-center as aforesaid also caused the said metal strip to stick up and stick out at the end of said ramp and at the entrance to said bridge approximately 9 inches above the end of said ramp, and then to continue sticking out and up above the level of said ramp as it extended at an upward angle so as to reach the main floor of said bridge, and also caused said heavy metal strip to extend up and down on and along said bridge and approach on a line which was approximately 6 feet to the west of the east line of said paved roadway. 19-A. That the protrusion of said bridge and its location and position as aforesaid also caused said heavy metal sills and the south end of said steel trusses to extend and protrude out on a line approximately 5 1/2 feet to the west of the east line of said roadway, and, to that extent over into the ordinary lane of travel of vehicles traveling north on said highway. 20. That on account of the narrowness of said bridge it was impossible for two automobiles to meet or pass thereon. 21. That the asphalt approach at the south end of said bridge and ramp as hereinbefore described was constructed and maintained in a rough, irregular, bumpy condition, and did not connect either with the paved roadway of said highway or with said ramp in a smooth, even manner, but the connection with each and both was rough, irregular and bumpy. 22. That the wooden slats or strips at the extreme south end of said ramp did not have any support underneath, and would rattle, shake and give (some slats or strips giving more than others) to the pressure of the tires of a passing automobile, so that the action and reaction as aforesaid of these slats or strips on an automobile traveling at an ordinary and lawful rate of speed for such a locality and place was of a kind and nature to cause the driver to lose control of his vehicle. 23. That all of the conditions of said bridge as described above were created at the time of and by the construction and completion of said bridge on the aforesaid date of April 7, 1948, and each and all of said conditions continued to exist from said date up to and including March 27, 1949; and each of the conditions described or identified in Paragraphs 12, 13, 16, 17, 18, 19, 19-A, 20, 21, and 22 of this petition constituted defects and dangerous conditions of said bridge and its approaches the ordinary consequences of the construction of which, and also of the maintenance of which, would be to cause the operator and driver of a motor vehicle (in ordinary travel) approaching and entering upon said asphalt approach and said bridge from the south (going north) and traveling at a lawful and reasonable rate of speed at and for said locality, to lose control of said motor vehicle and to bounce or plunge into the one or the other, or all, of the physical protrusions hereinbefore described, namely, the metal strip, the metal sills, or the double row or stand of steel trusses which were constructed, maintained and located as aforesaid. 24. That the said Mrs. E. F. Groover Jr., at the time and place and under the circumstances hereinbefore stated and hereafter set out had no notice or knowledge that said bridge in its condition aforesaid had been constructed or was being maintained at the location aforesaid. 25. That on account of a long downward slope of the highway of more than 1000 feet on the south side of said bridge at said location which continued and leveled off right at the said bridge itself, it was not possible for petitioner's wife to discover any of the aforesaid conditions of said bridge and its approaches until the said automobile was within a few feet of the actual bridge itself and until it was too late to make any appreciable reduction in the speed of said automobile by the use of brakes or otherwise prior to the instant when said automobile entered upon said bridge. 26. That petitioner's wife did not realize or discover, and for the reasons aforesaid could not in the exercise of ordinary care have realized or discovered the conditions of said bridge as hereinabove described and alleged to be dangerous until the very instant said automobile hit the entrance to said asphalt approach and it was then impossible for her to do anything to avoid the collision as hereinafter described. 27. That plaintiff's wife did reduce the speed of said automobile to some extent prior to the time that she entered upon said bridge and that she was operating said automobile at a speed of approximately 40 miles an hour when the said automobile actually struck the said asphalt approach. 27-A. That the narrowness of said bridge (approximately 10 feet) as compared or contrasted with the width of the permanent paved roadway (approximately 19 feet) with which it immediately connected, coupled with all of the other conditions of said bridge and its approaches as in this petition described (including the fact that the same was off-center in the manner and to the extent aforesaid), rendered it a place of peculiar and unusual danger for the operator and occupants of a motor vehicle going north and unaware of the fact that said bridge in its conditions aforesaid had been constructed or was being maintained at said location. 28. That at the instant the said Groover automobile was approaching said bridge, another automobile, being driven by one _______________ Hartsfield, approached and entered upon said bridge coming from the north and traveling south; that since petitioner's wife had no notice or knowledge that a bridge in the aforesaid condition had been constructed or was being maintained at said location, and since as aforesaid it was not possible for petitioner's said wife to discover any of said alleged dangerous conditions until the said automobile was within a few feet of the actual bridge itself, his said wife continued to keep said automobile to the right of the center line of said highway and on the east lane of the paved roadway of said highway (so as to stay on her side of the road) until the said automobile had actually entered upon said asphalt approach and had encountered the conditions on said approach as hereinbefore described. 29. That when the said automobile struck the rough, irregular bumpy and dangerous asphalt approach as hereinbefore described, it was bounced and thrown around in such a way and to such an extent as to cause petitioner's wife to lose control of said vehicle, and that the rough, bumpy, irregular and uneven condition where the asphalt approach connected with the south end of said ramp, the action of the wooden slat floor of said ramp, the action of the wooden slat floor of said ramp in giving to the weight and pressure of said automobile, the off-center condition of said bridge, its being nine feet narrower than the connecting paved roadway of said highway, the protrusion and extension of the heavy metal strip nine inches high and sticking out into the line and lane of travel of petitioner's wife, the location of the heavy metal sills sticking out and standing up 12 to 15 inches high in her lane and line of travel, all as particularly described hereinbefore in this petition, each contributed to, continued and accentuated her said loss of control, with the result that without the fault of petitioner's wife, the front of her said automobile bounced into and struck said metal strip on the east side of said ramp, and also struck the heavy metal sills aforesaid, and finally struck and smashed into the south end of the double row of steel trusses on the east side of the entrance to said bridge. 30. That the automobile of the said Mrs. Groover was practically demolished by running into and striking this heavy metal strip on the floor and end of the ramp and these heavy and high metal sills by the side of the ramp and the end of the steel trusses and at the same time petitioner's said wife as the result thereof suffered severe physical injuries as hereinafter set out." "35. That said main or original bridge and the approaches thereto was constructed since 1888, and approximately ten years prior to the date of the filing of this suit, the exact date of which is unknown to your petitioner; that said Bailey bridge and its temporary asphalt approaches aforesaid were put in place and built on or about April 7, 1948, as aforesaid, and that said Grady County acting through its Board of Commissioners of Roads and Revenues was and were negligent in allowing said bridge and the approaches thereto to be and remain in said alleged dangerous and defective conditions for a period of approximately 12 months, that is to say, from on or about April 7, 1948, to said date of March 24, 1949, and that on March 24, 1949, said alleged dangerous and defective conditions were known to or in the exercise of ordinary care could and should have been known to said Grady County and to the members of its Board of Commissioners of Roads and Revenues. 36. That the Maintenance Engineer for the State Highway Department of Georgia had full and actual knowledge of the aforesaid alleged dangerous and defective conditions of said bridge and its approaches from on or about April 7, 1949, when the said Bailey bridge was installed thereat and thereon, and although he had said knowledge he failed or refused to correct said condition or to have the same corrected. 37. That the said State Highway Department, in assuming and exercising jurisdiction over said State-aid road and over said bridge and its approaches at said time and place was jointly negligent along with said county and its officials in not repairing the aforesaid alleged dangerous and defective condition in said bridge and its approaches. 38. That the above and foregoing damage to petitioner directly and proximately resulted from and were caused by the acts and negligence on the part of the defendants as aforesaid, namely: (A) In failing to keep said bridge and its approaches in a safe and passable condition for ordinary travel. (B) In failing to repair said bridge and its approaches between the time it was washed away on April 1, 1948, and March 27, 1949, so as to have the said bridge and its approaches in a safe, passable condition for ordinary travel at the time petitioner's said wife was injured as aforesaid. (C) In failing to repair said Bailey bridge and its approaches between the time it was constructed and installed on or about April 7, 1948 and March 27, 1949, so as to have the said bridge and its approaches in a safe, passable condition for ordinary travel at the time petitioner's said wife was injured as aforesaid. (D) In placing and maintaining said Bailey bridge on top of what remained of the old bridge and its approaches at said location on said highway in such manner as to create and maintain a rough, irregular, bumpy, dangerous connection between the main highway and said asphalt approach, and also between the asphalt approach and the entrance to said ramps. (E) In placing and maintaining said Bailey bridge and its approaches at said location in such manner as to cause it to be off-center approximately 18 inches at its southeast corner. (F) In placing and maintaining said Bailey bridge and its approaches at said location in its other conditions aforesaid in such manner as to cause it to be only 10 feet in width though located as it was directly on a permanent, hard surfaced State highway with a paved roadway of 19 feet traveled extensively by the general public. (G) In placing and maintaining said Bailey bridge and its approaches in its other conditions aforesaid in such manner as to cause it to be only 10 feet in width as and when placed directly on a permanent, hard surfaced State highway with a paved roadway of 19 feet traveled extensively by the general public, considered particularly and specifically in connection with the further fact that it was placed and maintained in an off-center position of approximately 18 inches further over into the lane and line of travel of petitioner at the time, place and under the circumstances hereinabove set out. (H) In placing and maintaining said Bailey bridge at said location in its other conditions aforesaid with a width of only 10 feet, so that on this bridge directly placed and located on a main State highway, it would be impossible for two cars to meet or pass each other thereon. (I) In placing and maintaining said Bailey bridge at said location in such manner as to have annexed to the south end of said bridge and as a part thereof a ramp connecting with said asphalt approach not having any support underneath, with the result that the wooden slats constituting the floor of said ramp rattled, shook, and gave or yielded to the weight and pressure to the tires of petitioner's wife's automobile, thereby causing petitioner to lose control of her said automobile. (J) In placing and maintaining said Bailey bridge at said location in such manner as to cause said metal strip on the south side of said bridge to extend along said ramp and out to the end thereof to a height of 9 inches above the level of said ramp, and to protrude into line and lane of travel of petitioner's wife at a distance of approximately 6 feet west of the east line of the paved roadway of said highway where it immediately connects with said bridge and its approach. (K) In placing and maintaining said Bailey bridge at said location and on the south side thereof in such manner as to cause the said heavy metal sills to extend from said ramp outward into the open to a height of from 12 to 15 inches above the paved roadway and into the lane and line of travel of automobile of petitioner's wife as it approached said bridge traveling northward. (L) In placing and maintaining said Bailey bridge at said location in such a manner as to cause the aforesaid heavy steel trusses to protrude up and out into the lane or line of travel of the automobile of petitioner's wife as it traveled northward along the east side of said paved roadway, at the time and under the circumstances set out in this petition." The defendant made a motion to dismiss the action in the nature of a general demurrer. The motion was overruled and the defendant excepted.
On a motion to dismiss in the nature of a general demurrer the petition must be construed against the plaintiff. It alleged that Mrs. Groover, at the time and place and under the circumstances had no notice or knowledge that the bridge in its condition aforesaid had been constructed or was being maintained at the location aforesaid. Construing this allegation against the plaintiff it means that Mrs. Groover knew that the bridge was a narrow, one-way bridge. The plaintiff had the choice of his allegations and could have alleged that Mrs. Groover did not know that the bridge was a narrow, one-way bridge if it had been true. What has just been said justifies the ruling but it is also true that the allegations of fact in the petition appear about as accurate and frank as this court has been privileged to read in a plaintiff's petition. It even alleges that another automobile was occupying the bridge at the time Mrs. Groover sought to enter at 40 miles per hour. But however much we commend the plaintiff's frankness as to the facts alleged, we cannot agree with most of his contentions as to the specifications of negligence. As we see and understand the allegations there are only two specifications of negligence upon one or both of which a recovery could be predicated. One is that the asphalt approach was rough, irregular and bumpy and that the condition caused Mrs. Groover to be unable to get the automobile onto the travel part of the bridge safely. In this view, whether Mrs. Groover was negligent and the degree of her negligence would also arise for decision by the jury. The specifications of negligence set forth above, designated A, B, C D, treated together simply allege a faulty and dangerous asphalt approach to the bridge. Specifications E, F, G, H do not support an action for negligence because if Mrs. Groover knew that the bridge was a narrow, one-way bridge, the off-center line in the main highway as it approached the bridge, and the narrowness of the bridge, even if its maintenance was negligence, would not have been responsible for her not entering the bridge properly and safely, and she not only could have discovered the negligence of the authorities maintaining the bridge, if any, but she actually knew of the conditions existing insofar as the width of the bridge was concerned, and the defects alleged were within the bridge and beyond the entrance. Specification (I) is not actionable because the petition alleges that the automobile struck the hub guard or metal strip and other parts of the bridge before the vehicle reached the wooden floor of the bridge and it would be too problematical and remote to conclude that the unsupported slats made any material contribution to the injuries. The other meritorious specification of negligence is "(J)." It would be a jury question whether (specification J) permitting the metal strip to extend along the ramp and out to the end thereof to a height of 9 inches above the level of the ramp was negligence, whether it contributed to the injuries, etc. The negligence alleged in specifications (K) and (L) would not be actionable for the reasons stated in our discussion of specifications (E), (F), (G) and (H). Those were defects within the length of the bridge proper. The conclusions we have reached obtain whether or not we regard the erection and maintenance of a one-way bridge with the center line of the highway off-center with the center of the bridge as negligence. If Mrs. Groover knew that the bridge was a narrow, one-way bridge, the result is the same. The case should be submitted to the jury only on the specifications of negligence herein indicated and of course on other related questions of the negligence of the driver of the automobile, proximate cause, etc. The contention by the plaintiff in error that the plaintiff below is barred because the petition alleges that Mrs. Groover attempted to enter the bridge while occupied by another automobile is not well taken. This fact, among others, is relevant in determining the question of the negligence of Mrs. Groover, and what was the proximate cause of her running into the bridge, but this court cannot say as a matter of law that Mrs. Groover's negligence was the sole proximate cause of the injuries under the allegations of the petition with respect to the asphalt approach and the projecting hub guard.
The court did not err in overruling the motion to dismiss the action in the nature of a general demurrer.
Judgment affirmed. Worrill, J., concurs. Sutton, C.J., concurs in the judgment.