Opinion
35989.
DECIDED FEBRUARY 28, 1956. REHEARING DENIED MARCH 13, 1956.
Action for damages. Before Judge Lilly. Colquitt Superior Court. September 19, 1955.
John M. Robbins, H. T. O'Neal, Jr., for plaintiff in error.
Whelchel Whelchel, Moore, Gibson, DeLoache Gardner, contra.
1. The trial judge did not err in disallowing the amendment to the petition.
2. A general allegation of negligence is sufficient as against a general demurrer.
3. "When those in charge of a railway train neglect to comply with the statutory precautions in approaching a highway, and a person on the crossing is struck and injured, the only defenses open to the company are, that the injury was done by the consent of the person injured; or that by the observance of ordinary care he could have avoided the injury; or, in mitigation of damages, that his negligence contributed to it." Reed v. Southern Ry. Co., 37 Ga. App. 550 ( 140 S.E. 921).
DECIDED FEBRUARY 28, 1956 — REHEARING DENIED MARCH 13, 1956.
Robert C. McPhail, by and through his next friend, Mrs. Myrtle Inez McPhail brought an action for damages against the Atlantic Coast Line Railroad Company, Guy L. Bynum individually and doing business as Bynum Implement Company and Robert L. Stripling, on September 13, 1954, in Colquitt Superior Court.
The plaintiff's petition as amended alleged in substance: 3. That the defendants have injured and damaged your petitioner in the sum of $250,000 as will be shown by facts hereinafter alleged. 4. That your petitioner, Robert Cleveland McPhail, was riding as a guest passenger on August 19, 1954, in a truck driven by the defendant, Robert L. Stripling, and owned by Guy L. Bynum, individually and doing business as Bynum Implement Company. 5. That said truck at the time of the accident hereinafter described was being driven by the servant of Guy L. Bynum, individually and doing business as Bynum Implement Company, and at said time said driver was on the business of said master. 6. The said Guy L. Bynum, individually and doing business as Bynum Implement Company had authorized and consented for its said servant, Robert L. Stripling, to accept guest passengers, if not by actual statement to that effect, then by such continued acquiescence over so long a period of time as to imply consent. 7. That said truck was proceeding to an easterly direction along a paved road in Colquitt County, Georgia, known as the "Old Post Road." 8. That when the truck being driven by the defendant, Robert L. Stripling and owned by the defendant, Guy L. Bynum, individually and doing business as Bynum Implement Company, reached a point approximately 50 yards west of the intersection on the "Old Post Road" and the Moultrie-Thomasville Highway (also known as U.S. No. 319), said truck was struck by a train going in a northerly direction, and owned by the defendant, the Atlantic Coast Line Railroad Company. 9. That immediately prior to said collision the said Robert Cleveland McPhail was in excellent health and of good appearance and that said collision threw the child, Robert Cleveland McPhail, into and against metal surfaces and gadgets in said truck, and also threw him from said truck, inflicting upon him the following injuries: (several injuries were listed). 12. That all of said injuries and damages were caused by the negligence of the defendants, and said defendants were negligent in the following particulars: Defendant Stripling was guilty of gross negligence in failing to stop before attempting to cross said railroad track. Defendant Atlantic Coast Line Railroad Company was negligent in that its engineer operating said train failed to blow the train whistle two long blasts, one short blast, and one long blast when it reached a point 400 yards from said crossing; that said failure is a violation of Code § 94-506 of the Code of Georgia, and constitutes negligence per se. Said defendant was further negligent in that its engineer failed to keep and maintain a constant and vigilant lookout as he approached said crossing, and said failure is a violation of the above Code section and constitutes negligence per se. The plaintiff shows further that these acts and doings of the defendant Atlantic Coast Line Railroad Company failed to give the plaintiff or driver of the truck in which he was riding adequate warning, or any warning, of the impending danger.
On September 6, 1955, the plaintiff also filed the following amendment: "And said defendant was further grossly negligent in failing to see said train upon said track, and in failing to stop or turn said vehicle so as to avoid a collision with said train." This amendment was allowed subject to objection and demurrer. The trial judge sustained the defendant's objections to the amendment, and disallowed it.
The defendant then filed general demurrers to the petition, which the trial judge sustained and dismissed the petition. The plaintiff excepted to these rulings and the case is here for review.
1. The plaintiff insists that the trial judge erred in disallowing the following amendment: "And said defendant was further grossly negligent in failing to see said train upon said track, and in failing to stop or turn said vehicle so as to avoid a collision with said train." The defendants objected to the amendment as a conclusion of the pleader without any facts alleged upon which to base the conclusion pleaded. The amendment stated a mere conclusion and the trial judge did not err in disallowing it.
2. The petition as amended alleged no act of negligence on the part of the defendants Guy L. Bynum and Robert L. Stripling except: "Defendant Stripling was guilty of gross negligence in failing to stop before attempting to cross said railroad track." This averment was attacked by general demurrer. The narrow question arises as to whether this meager allegation, at best but a conclusion of the pleader was sufficient as against a general demurrer. The writer was satisfied after giving the matter consideration and in the light of authorities in reference to the general rules of pleadings, that it was not sufficient and that the trial court did not err in striking it. But in the final determination of the question that original conclusion appears to be incorrect. This is true, for although a general allegation of negligence is but a conclusion of the pleader and will be stricken when attacked by special demurrer ( Martin v. Greer, 31 Ga. App. 625, 121 S.E. 688), the rule seemingly is equally as well established that such an allegation of negligence as against a general demurrer is sufficient. Hudgins v. Coca-Cola Bottling Co., 122 Ga. 695 (2) ( 50 S.E. 974); Eubanks v. Akridge, 91 Ga. App. 243, 245 ( 85 S.E.2d 502); Trammell v. Columbus Railroad Co., 9 Ga. App. 98 (5) ( 70 S.E. 892). The petition set forth a cause of action against these defendants and the trial judge erred in sustaining the general demurrers.
3. The petition alleged that the defendant railroad was negligent in not blowing its whistle as prescribed by Code § 94-506; that the engineer failed to keep and maintain a constant and vigilant lookout as he approached the crossing; that the train did not give the driver of the plaintiff's truck adequate warning, or any warning, of impending danger.
The defendant railroad insists the trial judge was correct in sustaining the general demurrer, because the failure to blow the whistle as required by Code § 94-506 can not be considered as the proximate cause of a collision with a person who is on or near the tracks when the person is aware of the train's approach. While this is true, general demurrers have been sustained only in those cases where from the pleading it is clear that the person on or near the tracks had knowledge of the train's approach, which was not shown by the pleading in this case.
"When those in charge of a railway train neglect to comply with the statutory precautions in approaching a highway, and a person on the crossing is struck and injured, the only defenses open to the company are that the injury was done by the consent of the person injured; or that by the observance of ordinary care he could have avoided the injury; or, in mitigation of damages, that his negligence contributed to it. Bryson v. Southern Ry. Co., 3 Ga. App. 407, 408 ( 59 S.E. 1124); Harden v. Ga. R. Co., 3 Ga. App. 344 ( 59 S.E. 1122)." Reed v. Southern Ry. Co., 37 Ga. App. 550 ( 140 S.E. 921).
The petition did not, as contended, show that the collision proximately resulted solely from the host defendant's negligence, so as to relieve the railroad company of liability for its alleged negligence.
The trial judge erred in sustaining the general demurrer and dismissing the petition as to the defendant railroad.
Judgment reversed. Felton, C. J., and Nichols, J., concur.