Martin, As Next Friend v. Seaboard Air Line Railroad Company., 101 Ga. App. 819, 115 S.E.2d 248 (1960)

Status: DECIDED

Docket Number: 38199

Parts: Action for damages. Polk City Court. Before Jud...

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Troutman, Sams, Schroder & Lockerman, William H. Schroder, Robert L. Pennington, Henry A. Stewart, Sr., contra.Marson G. Dunaway, Jr., for plaintiff in error.

1. A railroad rail supported on two poles and kept along the railroad right-of-way to be used when needed is not an attractive nuisance and does not come within the "turn table" doctrine as applied in this jurisdiction.

2. A property owner is not responsible for injuries sustained by a licensee due to the falling of a railroad rail which was in a static condition, and the property owner was in no way responsible for the motivation which caused the rail to fall.

3. The attractive nuisance or "turn table" doctrine will not be extended in this jurisdiction.

This is an appeal from an order sustaining a general demurrer.

A mother, as next friend for her 10-year-old son, filed her petition in the superior court seeking damages for injuries sustained by her son when a railway track rail standing on the property of the railroad fell onto the boy causing severe injuries.

The petition, as amended, in substance shows the following facts: the plaintiff, a 10-year-old boy, his brother, and a friend went onto the property of the defendant railroad as they had done on many previous occasions. They walked along the side of the railway tracks at a place where the traveling public had full access and free use of the railroad as a pathway, a fact well known to the servants and employees of the defendant. The three boys while together discovered a spare iron or steel rail which was approximately 39 feet long and was extremely heavy, weighing about 100 pounds per foot. This rail had been placed by the defendant on the end of two short telephone poles approximately 3 1/2 feet high and embedded in the bed of the railroad. There was no effective device to prevent the heavy iron rail from falling off the ends of the two telephone poles on which it was resting. Large nails had been placed on each side of the rail on each pole to prevent the rail from falling to the ground. These had been allowed to become misted and corroded and to be bent away from the rail so that they did not perform the function for which they had been placed at the edges of the rail. The poles on which the rail was resting had been allowed to get in a dilapidated and run-down condition so that the earth area around the bottom of the poles was washed away and the poles had been caused to lean away from the vertical position at an angle of approximately 300. The rail thus placed was not braced in any manner.

The petition further alleges: The plaintiff and his companions attempted to walk along the rail from one pole to another and were playing about the rail as a train of the defendant passed. After playing on and about the rail, the injured boy's two companions continued to walk down the pathway at the edge of the defendant's track and left the plaintiff playing on and around the iron or steel rail by himself. As he continued to play on and around the rail, the rail in some manner unknown to the plaintiff fell from the top of the poles, knocking the plaintiff to the ground and crushing him along the middle of his body. The employees of the defendant railroad company knew that the traveling public walked along at this place and had full access and use of the pathway. The agents and employees of the defendant passed on a train while the injured boy and his companions were within their plain view. The defendant had both actual and constructive notice of the dangerous condition of the rail and that children were accustomed to playing upon and around the track at the place where the injury occurred and had notice for many years that people frequented the path and played at the place where the injury occurred.

The petition alleges further that the iron or steel rail was alluring and attractive to children and that the defendant had both actual and constructive notice of the dangerous condition and had actual notice that children were accustomed to playing on the track at the place where the injury occurred and had notice that for many years people had frequented this area on the path where the injury occurred. It alleges also that the railroad rail was so placed that any slight pressure on it would be likely to cause it to fall and the degree to which it leaned contributed to the likelihood that the rail would fall and injure any person within range of the danger. The petition further alleges that the condition and position of the rail created and constituted a pitfall and a mantrap and that the injury occurred as the result of the negligence of the defendant in operating the railroad and that the acts of negligence were wilful and wanton in nature and evidenced a complete disregard by the defendant of the safety of the boy and others coining upon the property.

The petition alleges that the railroad company was negligent in so placing the heavy iron rail; in failing to inspect the place where the injury occurred; in not discovering the defective condition of the nails placed in the tops of the telephone poles; in failing to detect that the poles were leaning; and in failing to maintain the area in a reasonably safe condition for the safety of persons coming onto the right-of-way with the knowledge and consent of the defendant.

The trial judge entered an order sustaining the defendant's general demurrer to the original petition. The plaintiff then filed an amended petition, and the defendant demurred to the petition as amended, which general demurrer was sustained by the trial court. The plaintiff assigned as error the sustaining of the general demurrer to the original petition and the sustaining of the general demurrer to the petition as amended.

BELL, Judge.

The petition in its entirety suggests two possible causes of action. One is the well-known doctrine of attractive nuisance more commonly known in this State as the "turn table" doctrine. The other is based on the duty of an owner of property toward licensees. Each of these will be considered by the court in determining whether or not a cause of action is alleged in the petition.

The position of the courts in Georgia and throughout the nation toward the inter-relationship between a property owner and children who go onto his premises, and the responsibilities and duties put upon the property owner when the child is injured upon his premises, has been one of considerable contemplation for many years. The image of this judicial meditation is now clearly reflected in all jurisdictions. From the first early consideration the doctrine of attractive nuisance, or the "turn table" doctrine, has developed into one which now in substance makes the owner of premises responsible for injuries to a child when the premises are maintained in such a condition that it is dangerous to children who are unable to appreciate the peril when such condition can be reasonably expected to attract children and thus occasion injury to them because of the dangerous condition of the premises unreasonably permitted to exist. This "attractive nuisance" doctrine was developed for the benefit of children coming upon the property even though the child was a trespasser. The doctrine was accepted by a great majority of jurisdictions in the United States, but its range of application has varied greatly within them. Some jurisdictions have totally refused to accept the doctrine. 38 Am. Jur. 802, Negligence, 142. Georgia at a very early date accepted the "attractive nuisance" tenet usually designating it, however, as the "turn table" doctrine. Ferguson v. Columbus & Rome Ry., 100 Ga. App. 627, 112 S. E. 2d 221), the petition alleges that the infant plaintiff and his companions were playing on and about the rail, and they attempted to walk along the rail from one pole to the other. At the time of the injury the infant plaintiff was playing on and around the steel rail and continued to play on and around the rail until the rail fell from the poles onto the plaintiff. From the facts alleged, it is evident that the petition sets forth a situation where no injury would occur unless someone disturbed the static position of the rail and caused it to fall. The facts alleged do not show that the toppling of the rail was caused by the defendant railroad company, but in reality they show that the rail must have been caused to fall by the plaintiff himself in his playing on and around the rail until it fell upon him. This case is clearly within the dictates of the recent case of George v. Continental Wrecking Corp., 101 Ga. App. 538 (114 S. E. 2d 383), wherein the opinion delivered for the court by Judge Nichols, states (p. 541): "Construing the allegations of the petition in the present case most strongly against the pleader, as must be done on general demurrer, and construing them in the light of the omissions as well as the averments (see Henderson v. Baird, 100 Ga. App. 627, 112 S. E. 2d 221), the petition alleges that the 'porous, cinder-like base (under the tile and concrete surface) crumbled easily and under only slight weight or pressure thereon.' It was not alleged that the concrete and tile surface fell as a result of the 'cinder-like' base having given way under the weight of the 'tile-and-concrete' surface, and in view of the allegation that it would crumble under only 'slight weight or pressure' it must be assumed that added weight or pressure of some description was placed thereon. Was it placed there by the defendant? If so it is not alleged, and it must be assumed on demurrer that it was not, for if it had, it would have been so alleged by the plaintiff. Was it placed there by the plaintiff or possibly by one of his playmates? If not, it is not so alleged, and under the decision of this court in Henderson v. Baird, 100 Ga. App. 627, supra, it must be assumed that the weight or pressure was applied by some person for whose actions the defendant corporation was not responsible. Accordingly, the petition sets forth a situation wherein no injury could occur unless added weight or pressure was placed on the 'concrete-and-tile' surface of the porch and in order for the defendant corporation to be liable for the plaintiff's injuries, it is necessary that it be shown that such corporation was responsible for such added weight or pressure being placed thereon. No such allegations appear in the petition and such absence of allegations must be construed to mean that such fact did not occur. 'Failure to allege the essential facts by allegations that fall short of the essential facts must be construed to mean the absence of such essential facts. Harrell v. Burch, 207 Ga. 167 (60 S. E. 2d 353).' Henderson v. Baird, 100 Ga. App. 627, 633, supra."

Inasmuch as there is no cause of action stated on the grounds of an attractive nuisance or on the grounds of a duty to the infant licensee, and because the facts cannot be construed to venture any other grounds for a cause of action, it is held that the general demurrer was properly sustained by the trial court.

The plaintiff, in filing an amendment to the original petition, rendered it unnecessary for us to determine whether the original petition before amendment was subject to general demurrer. Delcher Bros. Storage Co. v. Reynolds & Manley Lumber Co., 80 Ga. App. 288, 291 (55 S. E. 2d 864).

Judgment affirmed. Felton, C. J., and Nichols, J., concur.

1960