Opinion
36468.
DECIDED JANUARY 24, 1957.
Tort; cattle killed by train. Before Judge Carpenter. Jones Superior Court. September 10, 1956.
Erwin Sibley, for plaintiffs in error.
J. Pierce Anderson, contra.
The trial judge did not err in overruling the general demurrer to the petition.
DECIDED JANUARY 24, 1957.
L. W. Lowe filed an action in Jones Superior Court against the Louisville Nashville Railroad Company and the Atlantic Coast Line Railroad Company, lessees of the Georgia Railroad Banking Company, for damages arising out of the killing by the defendants' train of certain cows belonging to the plaintiff. The petition alleged in substance: that on November 25, 1954, the defendants were operating a train running from Macon toward the Town of James, Georgia, "on said tracks at a point approximately two miles in a westerly direction from the Town of James" and "running in an easterly direction from Macon"; that at the scene of the acts complained of the tracks were located on a long, narrow and high fill; that the tracks, however, were straight, affording employees of defendants opportunity to see far ahead and thus to see plaintiff's cattle on the tracks for more than half a mile before reaching them; that because of the nature of the terrain traversed by said tracks at the locality named, petitioner's cattle could not have gotten off the tracks without tumbling down a steep embankment; that before striking the cattle the train sounded loud blasts at long intervals and at the time the cattle were struck they were running in a direction opposite the train and thus the train had ample time to slow down or stop to permit the cattle to get off the tracks without injury but failed to do so and by reason of said failure to exercise ordinary care, four of said cattle were killed and another injured, the said acts amounting to carelessness and wanton misconduct; and that the acts of negligence alleged were specifically as follows: (a) by omitting to exercise ordinary care and diligence in avoiding a collision with the cattle, (b) in omitting to control the train, by slowing or stopping it, after the cattle were seen, to avoid striking them, and (c) by striking the cattle deliberately when the same could have been avoided.
The defendants filed a general demurrer to the petition which was overruled and they excepted.
1. The defendants insist the petition is contradictory in that it alleged the train was traveling in both an easterly and westerly direction. This contention is not well founded because the petition alleged the defendants were "operating a train on said tracks at a point approximately two miles in a westerly direction from the Town of James in Jones County, Georgia." This allegation merely located the train's position on the tracks and not the direction in which it was traveling. The petition then alleged the train was traveling in an "easterly direction from Macon, Georgia, and toward the Town of James, Georgia." This allegation established the direction in which the train was traveling and was not contradictory to the other.
2. The defendants further insist that the allegation that the "employees and crew" of the train should have seen the cows was not definite enough because it did not state which employees or crew should have done so or what authority they possessed. If the defendants wanted more certain information on this matter, they should have filed a special demurrer to this allegation. It is the office of a special demurrer to require the pleader to set out his cause of action with such definiteness, clarity and particularity as to enable the defendant to know the exact nature of the complaint and prepare himself to defend against it. Richmond Danville R. Co. v. Mitchell, 95 Ga. 78 ( 22 S.E. 124); Georgia, Southern Florida Ry. Co. v. Williamson, 84 Ga. App. 167, 175 ( 65 S.E.2d 444).
3. The defendants further contend that the petition did not show that the defendants had breached any duty to the plaintiff because the cows were trespassing animals. The petition alleged that the defendants' crew had ample time to see the cattle and that they should have stopped the train in an effort to avoid striking them. When the engineer sees, or in the exercise of ordinary care could see, the animal on the tracks in front of the train, he is then charged with the duty to exercise reasonable diligence to check the train and avoid killing or injuring the animal. Southern R. Co. v. Eubanks, 117 Ga. 217 ( 43 S.E. 487); Augusta c. R. Co. v. Carroll, 7 Ga. App. 138 ( 66 S.E. 403); Southern R. Co. v. Russell, 46 Ga. App. 772 ( 169 S.E. 245); Powell v. Rogers, 75 Ga. App. 165 ( 42 S.E.2d 573).
The trial judge did not err in overruling the general demurrer to the petition.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.