City of Macon v. Newberry

Broyles, C. J.

1. In a suit against a municipal corporation for damages for the homicide of the plaintiff's husband, where the original petition, properly construed (most strongly against the plaintiff), shows that the deceased, while in the full possession of all his faculties and in the daytime, was driving a horse hitched to a wagon upon a street of the city, and drove into a hole sixteen inches deep, three feet wide and ten feet long, causing him to be thrown from the wagon and fatally injured, the petition sets out no cause of action, as it is apparent that he saw or should have seen such an obvious danger, and that he failed to exercise ordinary care for his own protection. Holliday v. Mayor &c. of Athens, 10 Ga. App. 709 (4), 712, 713 ( 74 S. E. 67 ) ; Southern Railway Co. v. Rowe, 2 Ga. App. 557 (3) ( 59 S. E. 462 ) ; McCart v. Jasper County, 18 Ga. App. 769 ( 90 S. E. 725 ) ; City of Columbus v. Griggs, 113 Ga. 597 (1) ( 38 S. E. 953 , 84 Am. St. Rep. 257 ).

2. “The section of the code of this State which declares that pleadings may be amended, whether in matter of form or "of substance, provided there is enough in the pleadings to amend by, properly construed, means, that in order to admit of an amendment, a valid cause of action must be set forth in the original declaration.” Selma, Rome & Dalton R. Co. v. Lacey, 49 Ga. 107 (2).

3. Under the above-stated rulings and the pleadings in the instant case, the original petition failed to set forth a valid cause of action, and the court erred in allowing the amendment thereto. The amendment should have been disallowed and the petition dismissed on the general demurrer.

Judgment reversed.

Luke, J., eoneu/rs. Bloodworth, J., not participating, on account of illness.